Source: EURLEX
Language: en
Format: md

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 18 November 2021 (
[1](#t-ECR_62020CC0235_EN_01-E0001)
)

Case C‑235/20 P

ViaSat, Inc.

v

European Commission

(Appeal – Access to documents – Regulation (EC) No 1049/2001 – First indent of Article 4(2) – Exception relating to the protection of the commercial interests of a third party – Mobile satellite system operator – General presumption of confidentiality of documents provided by an operator that was selected in a call for applications to the Commission – Refusal to grant access)

I. Introduction

| 1. | By its appeal, ( [2](#t-ECR_62020CC0235_EN_01-E0002) ) ViaSat, Inc. (‘ViaSat’) seeks to set aside the judgment of the General Court of the European Union of 26 March 2020, ViaSat v Commission ([T‑734/17](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A123&locale=en), not published, [EU:T:2020:123](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A123); ‘the judgment under appeal’), by which the General Court dismissed the application of ViaSat to annul the European Commission’s Decision C(2018) 180 final of 11 January 2018, which upheld the Commission’s initial refusal to grant access to documents that ViaSat had requested (the ‘contested decision’). The decision was grounded on the exceptions set out in the first and second indents of Article 4(2) of 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, ( [3](#t-ECR_62020CC0235_EN_01-E0003) ) relating to the protection of commercial interests and court proceedings, as the documents in question consisted of documentation submitted by a successful applicant following a sui generis call for applications. |

| 2. | In arriving at its conclusion, the General Court held that the Commission, when refusing access to such documents pursuant to Article 4(2) of Regulation No 1049/2001, could rely on a general presumption of confidentiality in respect of documentation of that kind, namely applications submitted following a sui generis call for applications. |

| 3. | Notwithstanding the general obligation of any EU institution refusing to grant access to a document on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001 to explain, in principle, how access to that document could undermine the interest protected by that exception together with an assessment of the associated risk, ( [4](#t-ECR_62020CC0235_EN_01-E0004) ) the Court has acknowledged that EU institutions may, in certain cases, base their decisions on general presumptions. ( [5](#t-ECR_62020CC0235_EN_01-E0005) ) The Court of Justice has not as yet had the opportunity to consider whether such a general presumption may apply to documents submitted by applicants following a call for applications in a selection procedure of that kind. |

II. EU legal framework

A.
 
Regulation No 1049/2001

| 4. | Article 4 of Regulation No 1049/2001 entitled ‘Exceptions’, provides in its paragraphs 2, 6 and 7:  ‘2.   The institutions shall refuse access to a document where disclosure would undermine the protection of:   | – | commercial interests of a natural or legal person, including intellectual property, |  | – | court proceedings and legal advice, |  | – | the purpose of inspections, investigations and audits, |   unless there is an overriding public interest in disclosure.  …  6.   If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.  7.   The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.’ |

B.
 
Decision No 626/2008

| 5. | By Article 3(3) of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) ( [6](#t-ECR_62020CC0235_EN_01-E0006) ) (‘MSS Decision’):  ‘3.   Access to documents relating to the comparative selection procedure, including applications, shall be granted in accordance with [Regulation No 1049/2001].’ |

III. Facts and proceedings

A.
 
Background to the dispute and proceedings before the General Court

| 6. | The applicant, ViaSat, is a technology company providing communications solutions for individuals, businesses, and governments. On 2 May 2017, the applicant submitted an application for access to ‘[any] information submitted by Inmarsat PLC, Inmarsat Ventures Limited, and/or any of its affiliates, at the occasion of its participation in the EU tender completed on 13 May 2009 by Commission Decision 2009/449/EC on the selection of operators of pan-European systems providing mobile satellite services (MSS) ( [7](#t-ECR_62020CC0235_EN_01-E0007) ) and any exchange of information between Inmarsat and the European Commission during the tender following the initial bid and until the final award decision and any post-award communications’ (‘the requested documents’) to the Commission’s Directorate-General for Communications Networks, Content and Technology (‘DG Connect’). That request was made on the basis of Article 7 of Regulation No 1049/2001. According to the applicant, Inmarsat is one of its direct competitors and is amongst the operators that were selected to provide the services tendered for. |

| 7. | By letter of 22 June 2017, DG Connect informed the applicant that it had rejected the request for access in its entirety on the grounds that the disclosure of those documents would undermine the protection of the commercial interest of a natural or legal person, including intellectual property, court proceedings and legal advice. In DG Connect’s view, the requested documents were covered in their entirety by the exceptions provided for in the first and second indents of Article 4(2) of Regulation No 1049/2001. In the absence of an overriding public interest justifying the disclosure of those documents, access – including partial access – was refused. |

| 8. | On 10 July 2017, the applicant submitted a confirmatory application for access to documents to the Commission on the basis of Article 8 of Regulation No 1049/2001. |

| 9. | In the absence of an express reply to that confirmatory application, on 3 November 2017 the applicant brought an action for the annulment of the implied decision rejecting that application, pursuant to Article 8(3) of Regulation No 1049/2001. |

| 10. | On 11 January 2018, the Secretary-General of the Commission adopted an express decision rejecting the confirmatory application for access to the documents. In support of that contested decision, the Commission relied on Article 4(2), first indent (protection of commercial interests), of Regulation No 1049/2001, on the second indent of that article (protection of court proceedings and legal advice), and on Article 4(1)(b) (protection of privacy and the integrity of the individual) of that regulation. In that decision, the Commission also identified a document covered by the request that had not previously been identified, namely an ‘e-mail exchange between DG [“Information Society and Media”] ( [8](#t-ECR_62020CC0235_EN_01-E0008) ) and Inmarsat, October/November 2008 (Ares(2017)439857)’, relating to a request for additional information sent by the Commission on 24 October 2008 regarding the admissibility requirements set out in the call for applications and Inmarsat’s reply of 6 November 2008 (‘the email exchange’). |

| 11. | On 22 January 2018, the Commission brought an application for a declaration that there is no need to adjudicate following the adoption of the contested decision. |

| 12. | On 22 March 2018, the applicant lodged a statement of modification of the application so that the action thereafter sought the annulment of the contested decision. |

| 13. | By order of 4 September 2018, Inmarsat Ventures Ltd. was granted leave to intervene in support of the form of order sought by the Commission. |

B.
 
The judgment under appeal

| 14. | In support of its application, ViaSat raised five grounds of annulment in which it alleged that the Commission had infringed, first, the first indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of commercial interests, second, the second indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of court proceedings, third, Article 4(1)(b) of Regulation No 1049/2001 relating to the protection of privacy, fourth, the last clause of Article 4(2) of Regulation No 1049/2001 concerning the existence of an overriding public interest in disclosure, and, fifth, Article 4(6) of Regulation No 1049/2001 concerning the refusal to grant partial access. |

| 15. | The General Court held that there was no need to rule on the lawfulness of the Commission’s implied decision and dismissed the remainder of the action. |

| 16. | The General Court held that the Commission could invoke a general presumption of confidentiality regarding the requested documents, which related to the tender submitted by Inmarsat. ( [9](#t-ECR_62020CC0235_EN_01-E0009) ) It relied on its case-law ( [10](#t-ECR_62020CC0235_EN_01-E0010) ) according to which, because of the nature of the documents concerned, access to the bids of tenderers regarding public contracts would, in principle, undermine the protection of commercial interests. ( [11](#t-ECR_62020CC0235_EN_01-E0011) ) |

| 17. | Contrary to the applicant’s claim, the General Court ruled that this presumption does not apply only with respect to requests for access submitted by an unsuccessful tenderer. In addition to the fact that it would be illogical to grant wider access to third parties than to unsuccessful tenderers, the disclosure of certain information in accordance with Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities ( [12](#t-ECR_62020CC0235_EN_01-E0012) ) (‘the Financial Regulation’) has no bearing on the application of a presumption of confidentiality under Regulation No 1049/2001. ( [13](#t-ECR_62020CC0235_EN_01-E0013) ) |

| 18. | In the light of the above, the General Court further held that Article 3(3) of the MSS Decision, on which the applicant relied, merely reiterates that any request for access to documents is to be examined by reference to Regulation No 1049/2001, without having the objective or effect of altering the scope of that regulation. ( [14](#t-ECR_62020CC0235_EN_01-E0014) ) |

| 19. | The General Court rejected the applicant’s argument according to which the presumption should not apply given that more than five years had elapsed since the selection procedure had been closed. The reason behind that rejection is that the documents to which access was sought, by their nature, are likely to contain confidential technical and economic information about the successful tenderer, in particular information on that tenderer’s competencies and working methods, know-how, internal organisation, costs and proposed prices. This was all the more so since Inmarsat had not yet launched in-flight connectivity services in 2017 and the spectrum allocation in its favour is valid until at least 2027. ( [15](#t-ECR_62020CC0235_EN_01-E0015) ) |

| 20. | The General Court further held that the contested decision contained sufficient reasons to reject any overriding public interest in disclosure in accordance with the last clause of Article 4(2) of Regulation No 1049/2001. ( [16](#t-ECR_62020CC0235_EN_01-E0016) ) Moreover, it ruled that the Commission did not err in finding that the existence of an overriding public interest could not be identified on the basis of the circumstances invoked by the applicant. ( [17](#t-ECR_62020CC0235_EN_01-E0017) ) |

| 21. | The General Court found that the Commission did not infringe Article 4(6) of Regulation No 1049/2001 by refusing partial access to the requested documents since these were covered in their entirety by a general presumption of confidentiality. ( [18](#t-ECR_62020CC0235_EN_01-E0018) ) |

| 22. | In the light of its findings, the General Court did not consider it necessary to examine the merits of the second and third pleas concerning the incorrect application of the exceptions relating to the protection of court proceedings and the protection of privacy, respectively. ( [19](#t-ECR_62020CC0235_EN_01-E0019) ) |

C.
 
The appeal

| 23. | On 12 June 2020, ViaSat brought an appeal against the judgment in ViaSat v Commission. ( [20](#t-ECR_62020CC0235_EN_01-E0020) ) It raised two grounds of appeal. |

| 24. | Its first ground of appeal, based on the infringement of Article 4(2) of Regulation No 1049/2001 relating to the protection of commercial interests, is divided into four parts. First, ViaSat argues that the General Court erred in law when it applied a general presumption of confidentiality to the requested documents because the presumption only applies to tenderers’ bids in the context of public procurement procedures governed by the Financial Regulation. Second, in ViaSat’s view, if the General Court decided to apply a new general presumption, it failed to state reasons therefor. Third, ViaSat maintains that such a general presumption could in any case not apply to the requested documents as that would deprive Article 3(3) of the MSS Decision of its useful effect and would be contrary to Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Fourth, it objected to the General Court’s finding that the general presumption of confidentiality applied to the requested documents in their entirety. |

| 25. | By its second ground of appeal, ViaSat claims that the General Court erred in law regarding the existence of an overriding public interest in disclosure and therefore infringed the last clause of Article 4(2) of Regulation No 1049/2001. |

| 26. | ViaSat and the Commission submitted written observations. Inmarsat Ventures SE ( [21](#t-ECR_62020CC0235_EN_01-E0021) ) also filed written observations in support of the form of order sought by the Commission. Pursuant to Article 76(2) of the Rules of Procedure of the Court of Justice of the European Union, the Court decided not to hold a hearing. |

| 27. | In line with the request by the Court, I confine my Opinion to the first ground of appeal. |

IV. Assessment

A.
 
First part of the first ground of appeal

| 28. | By the first part of its first ground of appeal, ViaSat claims the General Court erroneously ruled that a general presumption of confidentiality based on the protection of commercial interests applies to the requested documents, namely documents submitted by a tenderer in a tender procedure outside the scope of the Financial Regulation. |

| 29. | ViaSat considers that the general presumption applies only to documents submitted in the context of a public tender organised under the Financial Regulation. It argues that that regulation provides that unsuccessful tenderers can obtain at least certain information (the name of the successful tenderer, the characteristics and relative advantages of the successful tender and the price paid or the contract value). In the present case, ViaSat has not obtained any such information since the Financial Regulation does not apply and the MSS Decision does not contain any specific provision establishing a right to obtain certain information. Therefore, ViaSat submits that, contrary to what the General Court ruled, the Commission should have carried out an individual examination of its request for access to documents. |

| 30. | In support of its position, ViaSat argues, by analogy, that the general presumption of confidentiality does not apply to documents submitted in the context of calls for proposals of grants covered by the Financial Regulation, where the EU institutions have to carry out an individual assessment. According to ViaSat, the judgment of the General Court in Agapiou Joséphidès v Commission and EACEA ( [22](#t-ECR_62020CC0235_EN_01-E0022) ) supports that position. |

| 31. | In its reply, ViaSat further contends that, even assuming that the application sent by Inmarsat during the selection procedure could be considered as being of the same nature as bids submitted by tenderers in public procurement procedures, the email exchange between the Commission and Inmarsat cannot be considered as being of the same nature as those bids. |

| 32. | The Commission and Inmarsat disagree with ViaSat’s reasoning. |

| 33. | As I have already pointed out, in order to justify a refusal of access to documents, it is not sufficient for the EU institution in question to assert that a requested document is covered by Article 4(2) of Regulation No 1049/2001. In principle, the EU institution must provide an adequate explanation as to how such access could specifically and actually undermine the interest protected by that provision. However, the Court has also accepted that it is open to the institution to base its decision to refuse access to documents on general presumptions. A general presumption can apply to 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. ( [23](#t-ECR_62020CC0235_EN_01-E0023) ) Moreover, as general presumptions constitute an exception to the rule that the EU institution concerned is obliged to carry out a specific and individual examination and, more generally, to the principle that the public should have the widest possible access to documents held by the EU institutions, they must be interpreted and applied strictly. ( [24](#t-ECR_62020CC0235_EN_01-E0024) ) |

| 34. | To date, the EU Courts have recognised that certain categories of documents may be covered by a general presumption of confidentiality. ( [25](#t-ECR_62020CC0235_EN_01-E0025) ) However, the list of those categories of documents is not closed. |

| 35. | As the Court held in its judgment in ClientEarth v Commission, in order to recognise a new category of documents, it must be shown that it is reasonably foreseeable that disclosure of the type of document falling within that category would be liable to undermine the interest protected by the exception in question. ( [26](#t-ECR_62020CC0235_EN_01-E0026) ) |

| 36. | In my view, the first ground of appeal raises one main question. Should the documents submitted in the context of a selection procedure following a sui generis call for applications be covered by a general presumption of confidentiality relating to the protection of commercial interests, even if that procedure is not governed by the Financial Regulation, such as in the present case? |

| 37. | I consider that this question should be answered in the affirmative. For the sake of completeness, it should be noted that, as the Commission rightly points out, in the present appeal, the Court is not required to decide whether a general presumption of confidentiality relating to the protection of commercial interests may apply to documents submitted in all tender procedures. |

| 38. | By reference in particular to the judgments in Cosepuri v EFSA ( [27](#t-ECR_62020CC0235_EN_01-E0027) ) and Secolux v Commission, ( [28](#t-ECR_62020CC0235_EN_01-E0028) ) in the judgment under appeal the General Court ruled that, by reason of the economic and technical information contained therein, bids submitted by tenderers in a call for tenders may fall within the scope of the exception relating to the protection of commercial interests. It added that it is because of the nature of those documents that there is a presumption that access to the bids of tenderers in the context of public contracts would, in principle, undermine the protection of commercial interests. ( [29](#t-ECR_62020CC0235_EN_01-E0029) ) |

| 39. | Furthermore, the General Court stated in the judgment under appeal that, as it had ruled in Secolux v Commission, such documents, by their nature, may contain confidential technical and economic information about the successful tenderer, in particular information on its competences and working methods, its know-how, its internal organisation, its costs and its proposed prices. ( [30](#t-ECR_62020CC0235_EN_01-E0030) ) |

| 40. | I take the view that the General Court was correct to transpose that reasoning and to apply a general presumption in the circumstances of the present case. I note that the judgment under appeal states that, according to the contested decision, the requested documents describe in detail Inmarsat’s business model and capabilities and reflect specific technological know-how in the fields with which the selection procedure is concerned. Moreover, the requested documents set out how Inmarsat plans to use a pan-European S-band spectrum allocation with a view to providing MSS commercially within the EU. That information is of commercial value to, and reflects inside knowledge of, Inmarsat, reflecting its specific know-how and business models, the disclosure of which would undermine its commercial interests. Access to those documents would not only reveal information about business models and capabilities to competitors, but it would also allow other potential applicants in possible future calls to copy Inmarsat’s application in support of their own applications. ( [31](#t-ECR_62020CC0235_EN_01-E0031) ) |

| 41. | Furthermore, I note that, by virtue of the MSS Decision, the applicants were required to submit evidence of their ability to meet a number of milestones set out in the annex to the MSS Decision; in particular, submission of an International Telecommunication Union request for coordination, satellite manufacturing, satellite launch agreement, gateway Earth stations, completion of the critical design review, satellite mating, satellite launching, frequency coordination and provision of MSS within the territories of the Member States. |

| 42. | In view of the foregoing, I consider that documents submitted by an applicant in the context of a selection procedure following a sui generis call for applications such as the present one may be covered by a general presumption of confidentiality relating to the protection of commercial interests. |

| 43. | I now turn to four additional arguments adduced by ViaSat. |

| 44. | First, as regards the question of whether the general presumption of confidentiality may apply to selection procedures not organised under the Financial Regulation, I am of the clear view that it admits of an affirmative answer. |

| 45. | Contrary to the appellant’s argument, the fact that the Financial Regulation contains a provision granting identified persons (namely unsuccessful tenderers) the right to obtain certain information ( [32](#t-ECR_62020CC0235_EN_01-E0032) ) has no bearing upon the application of Regulation No 1049/2001, which governs requests for access to documents made by members of the general public. Any person may invoke the provisions of Regulation No 1049/2001, irrespective of whether he or she has a legitimate interest (other than that held with any other member of the public) to obtain access to the documents sought. Regulation No 1049/2001 does not have the goal of protecting the legitimate interests of unsuccessful tenderers. What is decisive is not whether interested parties may obtain certain information pursuant to specific pieces of legislation (such as the Financial Regulation), but whether, given the nature of the requested documents, it is reasonably foreseeable that their disclosure to the public would be liable to undermine the commercial interests of the applicant or tenderer in question. |

| 46. | In that respect, it should be added that, as the judgment under appeal correctly pointed out, Article 3(3) of the MSS Decision simply reiterates that requests for access to documents relating to selection procedures governed by that decision are to be examined on the basis of Regulation No 1049/2001, without having the objective or effect of altering the scope of the latter. ( [33](#t-ECR_62020CC0235_EN_01-E0033) ) |

| 47. | Second, the appellant’s argument relating to the judgment of the General Court in Agapiou Joséphidès v Commission and EACEA ( [34](#t-ECR_62020CC0235_EN_01-E0034) ) is based on a misreading of that judgment. Although it is correct that the Commission decided to carry out an individual examination in that case, nothing in that judgment indicates that the Commission could not have relied instead on a general presumption of confidentiality in the context of calls for proposals of grants. It is worth remembering that the EU institutions are not obliged to rely on such general presumptions. Having recourse to a general presumption of confidentiality is thus merely an option for the EU institution concerned. It is always free to decide to carry out a specific and individual examination of the documents in question. ( [35](#t-ECR_62020CC0235_EN_01-E0035) ) |

| 48. | Third, ViaSat contends that the email exchange between Inmarsat and the Commission regarding the fulfilment of the admissibility requirements is not of the same nature as the application and thus should not be covered by the general presumption. Leaving to one side the issue of the admissibility of that line of argument, which the Commission disputes, it falls to be rejected on its merits. Additional information provided by the applicant on the fulfilment of the admissibility criteria forms an integral part of the bid and should be treated as such. Even if the admissibility criteria are public, as the appellant claims, it does not follow that the replies to requests for clarifications regarding the reasons as to why an application meets those criteria are, by their nature, public. |

| 49. | Fourth, ViaSat raises the question as to whether the lapse of time since the selection and authorisation in 2009 has eroded the case for business confidentiality. As the General Court correctly noted in its judgment, ( [36](#t-ECR_62020CC0235_EN_01-E0036) ) disclosure would be likely to reveal confidential technical and financial information about the successful applicant, in particular information on its competencies and working methods, know-how, internal organisation, costs and proposed prices. The General Court was also correct to observe that the disclosure of that information or of any other information of commercial value reflected in the offer, even more than five years after the closure of the selection procedure, would be likely to undermine the protection of Inmarsat’s expertise, strategy and creativity, and therefore its commercial strength. The General Court pointed out that Inmarsat had not yet launched in-flight connectivity services at the time of the request for access to documents and that the spectrum allocation in question in its favour is valid until at least 2027. There is thus no reason to consider that those concerns have dissipated due to the lapse of time since the adoption of the selection and authorisation decision. |

| 50. | It follows, therefore, that the first part of the first ground of appeal is unfounded. |

B.
 
Second part of the first ground of appeal

| 51. | ViaSat argues that, assuming that the General Court intended to recognise a general presumption of confidentiality in respect of all documents filed by candidates in the context of all tendering procedures organised by the EU institutions, it failed to state reasons therefor. |

| 52. | The Commission and Inmarsat contest ViaSat’s arguments. |

| 53. | I find myself unpersuaded by ViaSat’s line of argument. First of all, as indicated in point 37 above, the present appeal does not raise the issue as to whether a general presumption of confidentiality relating to the protection of commercial interests should apply to documents submitted in all tender procedures. Moreover, the General Court identified sufficient reasons to recognise the existence of a presumption in the present case, in particular in paragraphs 42, 43 and 48 of the judgment under appeal. In essence, the General Court ruled that this is because, by their nature, bids submitted in selection procedures following calls for applications such as the present one are liable to contain economic and technical information, the disclosure of which would, in principle, undermine the protection of commercial interests. |

| 54. | It follows that the second part of the first ground of appeal is not well founded. |

C.
 
Third part of the first ground of appeal

| 55. | By the third part of its first ground of appeal, ViaSat considers that the General Court erred in law when it considered that a general presumption of confidentiality should apply to documents such as those requested in the present case. In support of its position, the appellant raises three arguments. |

| 56. | First, the application of such a general presumption of confidentiality would deprive Article 3(3) of the MSS Decision of its useful effect. ViaSat contends that it can be inferred from that provision that the EU legislature considered that the integrity of the selection procedure of operators of pan-European systems providing mobile satellite services would not be undermined if access was granted to the relevant documents. |

| 57. | Second, ViaSat underlines the fact that it cannot benefit from the specific right of access to certain information granted by the Financial Regulation to unsuccessful tenderers because it did not participate in the tender. In any event, the MSS Decision does not provide for any similar right to access certain information. |

| 58. | Third, ViaSat submits that the application of a general presumption of confidentiality to the type of documents in question infringes its right to an effective judicial remedy, enshrined in Article 47 of the Charter. ViaSat argues that, in the absence of access to the requested documents, it would be extremely difficult for a competitor to establish that Inmarsat had breached the terms of its own bid. ViaSat adds that it had initiated litigation before the General Court concerning the Commission’s alleged failure to ensure Inmarsat’s compliance with the terms of the call for applications and of its bid. ( [37](#t-ECR_62020CC0235_EN_01-E0037) ) |

| 59. | The Commission and Inmarsat dispute the appellant’s arguments. |

| 60. | In my view, the first two arguments raised by ViaSat should be rejected for the reasons already indicated in points 44 to 46 above. In that respect, I would add that, if the EU legislature had wished to confer a right to obtain certain information upon unsuccessful applicants in the context of procedures for the selection of operators of pan-European systems providing mobile satellite services, it could have included a provision similar to Article 100(2) of the Financial Regulation. However, it did not do so. Moreover, as the appellant itself recognises, even had such a provision existed, it could not have benefitted from it because it had not participated in the selection procedure. |

| 61. | As for the right to an effective judicial remedy recognised by Article 47 of the Charter, I note that ViaSat did not raise that argument before the General Court. |

| 62. | According to Article 127(1) of the Rules of Procedure of the Court of Justice, read in conjunction with Article 190 thereof, no new pleas in law may be put forward on appeal. To allow a party to put forward for the first time before the Court of Justice a plea in law which it did not raise before the General Court would in effect allow that party to bring before the Court of Justice a wider case than that heard by the General Court. In an appeal, the Court of Justice’s jurisdiction is, as a general rule, confined to a review of the assessment by the General Court of the pleas argued before it. However, an argument that was not raised at first instance does not constitute a new, and thus inadmissible, plea at the appeal stage if it simply amplifies an argument already developed in the context of a plea contained in the application before the General Court. ( [38](#t-ECR_62020CC0235_EN_01-E0038) ) |

| 63. | That is not the case here. ViaSat did not raise any argument based on the infringement of Article 47 of the Charter during the proceedings before the General Court. It is therefore inadmissible. |

| 64. | In any event, the third line of argument is also unfounded. |

| 65. | The objective of Regulation No 1049/2001 is not to assist interested parties for the purpose of litigation, as is clear from the fact that the person requesting access does not have to state reasons or demonstrate any particular interest in having access. |

| 66. | Moreover, I doubt that the decision in Varec, ( [39](#t-ECR_62020CC0235_EN_01-E0039) ) cited by ViaSat, is of any real assistance to the appellant. If anything, it suggests that ViaSat was wrong to try to avail itself of Regulation No 1049/2001 in the context of that litigation. In Varec, the applicant challenged a public procurement award where its tender had been rejected on the basis that it had not satisfied the technical criteria. It then commenced proceedings before the Belgian courts in which it sought the annulment of the tender award. For that purpose it sought access to the tender documentation of the winning tenderer. The latter naturally opposed that application contending that its tender documentation was confidential. |

| 67. | Following a reference from the Belgian courts, the Court held that the principle of the protection of confidential information and of business secrets must be observed in such a way as to reconcile it with the requirements of effective legal protection and the rights of defence of the parties to the dispute. ( [40](#t-ECR_62020CC0235_EN_01-E0040) ) It followed that the Court enjoined the national courts to examine such applications for the disclosure of tender documents on a case-by-case basis, balancing the interests of the winning tenderer in safeguarding the confidentiality of business secrets with the requirements of effective legal protection. ( [41](#t-ECR_62020CC0235_EN_01-E0041) ) |

| 68. | All of the above demonstrates that had ViaSat considered that the documents which are the subject matter of those proceedings were necessary for the purpose of litigation, it ought to have ventilated that issue before the court adjudicating on the dispute. That court might then have been in a position to have balanced the conflicting interests in order to decide to what extent and by what process certain information or documents, if any, may be disclosed. There is no indication in the Court’s file that ViaSat invoked that process at any time. |

| 69. | It follows, therefore, that the third part of the first ground of appeal is in part inadmissible and in part unfounded. |

D.
 
Fourth part of the first ground of appeal

| 70. | ViaSat argues that the General Court erred in law when it ruled that the general presumption applied to the requested documents in their entirety. In particular, ViaSat contends that even if the general presumption of confidentiality could cover certain categories of sensitive information such as pricing information or know-how, the Commission should have carried out an individual examination of the documents with a view to identifying which ones concerned the characteristics and essential advantages of Inmarsat’s submission. |

| 71. | It seems to me that the appellant’s argument rests on a misunderstanding as to the consequences of the application of a general presumption to certain categories of documents. By definition, where a general presumption applies to a certain category of documents, the EU institution concerned does not need to examine the documents individually in order to determine whether parts of those documents should be disclosed (for instance, the parts of the documents relating to the characteristics and essential advantages of the successful tender). ( [42](#t-ECR_62020CC0235_EN_01-E0042) ) |

| 72. | It follows that the fourth part of the first ground of appeal is unfounded. |

V. Conclusion

| 73. | In conclusion, I propose that the Court reject the first ground of appeal. |

---

(
[1](#c-ECR_62020CC0235_EN_01-E0001)
) Original language: English.

(
[2](#c-ECR_62020CC0235_EN_01-E0002)
) Lodged at the Registry of the Court of Justice on 12 June 2020.

(
[3](#c-ECR_62020CC0235_EN_01-E0003)
) [OJ 2001 L 145, p. 43](./../../../legal-content/EN/AUTO/?uri=OJ:L:2001:145:TOC).

(
[4](#c-ECR_62020CC0235_EN_01-E0004)
) Judgments of 4 September 2018, ClientEarth v Commission ([C‑57/16 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660&locale=en), [EU:C:2018:660](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660), paragraph [51](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660&anchor=#point51)), and of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA ([C‑576/19 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A873&locale=en), [EU:C:2020:873](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A873), paragraph [51](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A873&anchor=#point51)).

(
[5](#c-ECR_62020CC0235_EN_01-E0005)
) See, to that effect, inter alia, judgments of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA ([C‑178/18 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A24&locale=en), [EU:C:2020:24](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A24), paragraph [55](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A24&anchor=#point55)), and of 22 January 2020, PTC Therapeutics International v EMA ([C‑175/18 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A23&locale=en), [EU:C:2020:23](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A23), paragraph [58](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A23&anchor=#point58)).

(
[6](#c-ECR_62020CC0235_EN_01-E0006)
) [OJ 2008 L 172, p. 15](./../../../legal-content/EN/AUTO/?uri=OJ:L:2008:172:TOC).

(
[7](#c-ECR_62020CC0235_EN_01-E0007)
) [OJ 2009 L 149, p. 65](./../../../legal-content/EN/AUTO/?uri=OJ:L:2009:149:TOC).

(
[8](#c-ECR_62020CC0235_EN_01-E0008)
) Later DG Connect.

(
[9](#c-ECR_62020CC0235_EN_01-E0009)
) Paragraph 65 of the judgment under appeal.

(
[10](#c-ECR_62020CC0235_EN_01-E0010)
) Judgments of 29 January 2013, Cosepuri v EFSA ([T‑339/10 and T‑532/10](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2013%3A38&locale=en), [EU:T:2013:38](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2013%3A38)); of 21 September 2016, Secolux v Commission ([T‑363/14](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2016%3A521&locale=en), [EU:T:2016:521](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2016%3A521)); and of 14 December 2017, Evropaïki Dynamiki v Parliament ([T‑136/15](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2017%3A915&locale=en), [EU:T:2017:915](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2017%3A915)).

(
[11](#c-ECR_62020CC0235_EN_01-E0011)
) Paragraph 43 of the judgment under appeal.

(
[12](#c-ECR_62020CC0235_EN_01-E0012)
) [OJ 2002 L 248, p. 1](./../../../legal-content/EN/AUTO/?uri=OJ:L:2002:248:TOC).

(
[13](#c-ECR_62020CC0235_EN_01-E0013)
) Paragraphs 52 to 55 of the judgment under appeal.

(
[14](#c-ECR_62020CC0235_EN_01-E0014)
) Ibid., paragraph 56.

(
[15](#c-ECR_62020CC0235_EN_01-E0015)
) Ibid., paragraphs 58 and 59.

(
[16](#c-ECR_62020CC0235_EN_01-E0016)
) Ibid., paragraph 81.

(
[17](#c-ECR_62020CC0235_EN_01-E0017)
) Ibid., paragraph 82.

(
[18](#c-ECR_62020CC0235_EN_01-E0018)
) Ibid., paragraph 92.

(
[19](#c-ECR_62020CC0235_EN_01-E0019)
) Ibid., paragraphs 95 to 98.

(
[20](#c-ECR_62020CC0235_EN_01-E0020)
) Judgment of 26 March 2020 ([T‑734/17](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A123&locale=en), not published, [EU:T:2020:123](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A123)).

(
[21](#c-ECR_62020CC0235_EN_01-E0021)
) Inmarsat Ventures SE provided proof that it had previously been registered as Inmarsat Ventures Ltd., that it had been transformed and that its registered office had been transferred without its dissolution.

(
[22](#c-ECR_62020CC0235_EN_01-E0022)
) Judgment of 21 October 2010 ([T‑439/08](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2010%3A442&locale=en), not published, [EU:T:2010:442](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2010%3A442)).

(
[23](#c-ECR_62020CC0235_EN_01-E0023)
) See, to that effect, inter alia, judgments of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA ([C‑178/18 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A24&locale=en), [EU:C:2020:24](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A24), paragraph [55](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A24&anchor=#point55)), and of 22 January 2020, PTC Therapeutics International v EMA ([C‑175/18 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A23&locale=en), [EU:C:2020:23](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A23), paragraph [58](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A23&anchor=#point58)).

(
[24](#c-ECR_62020CC0235_EN_01-E0024)
) Judgment of 4 September 2018, ClientEarth v Commission ([C‑57/16 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660&locale=en), [EU:C:2018:660](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660), paragraph [80](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660&anchor=#point80) and the case-law cited).

(
[25](#c-ECR_62020CC0235_EN_01-E0025)
) In its judgment of 4 September 2018, ClientEarth v Commission ([C‑57/16 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660&locale=en), [EU:C:2018:660](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660), paragraph [81](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660&anchor=#point81)), the Court acknowledged the existence to that date of five such categories, namely (1) the documents in an administrative file relating to a procedure for reviewing State aid; (2) the submissions lodged in proceedings before the courts of the European Union, for as long as those proceedings remain pending; (3) the documents exchanged between the Commission and notifying parties or third parties in the course of merger control proceedings; (4) the documents relating to an infringement procedure during its pre-litigation stage, including the documents exchanged between the Commission and the Member State concerned during an EU pilot procedure; and (5) the documents relating to proceedings under Article 101 TFEU.

(
[26](#c-ECR_62020CC0235_EN_01-E0026)
) Judgment of 4 September 2018, ClientEarth v Commission ([C‑57/16 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660&locale=en), [EU:C:2018:660](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660), paragraph [80](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A660&anchor=#point80)).

(
[27](#c-ECR_62020CC0235_EN_01-E0027)
) Judgment of 29 January 2013 ([T‑339/10 and T‑532/10](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2013%3A38&locale=en), [EU:T:2013:38](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2013%3A38)).

(
[28](#c-ECR_62020CC0235_EN_01-E0028)
) Judgment of 21 September 2016 ([T‑363/14](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2016%3A521&locale=en), [EU:T:2016:521](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2016%3A521)).

(
[29](#c-ECR_62020CC0235_EN_01-E0029)
) Paragraphs 42 and 43 of the judgment under appeal.

(
[30](#c-ECR_62020CC0235_EN_01-E0030)
) Ibid., paragraph 51.

(
[31](#c-ECR_62020CC0235_EN_01-E0031)
) Paragraph 48 of the judgment under appeal.

(
[32](#c-ECR_62020CC0235_EN_01-E0032)
) Pursuant to Article 100(2) of the Financial Regulation, all tenderers whose tenders are admissible and who make a request in writing may obtain the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.

(
[33](#c-ECR_62020CC0235_EN_01-E0033)
) Paragraph 56 of the judgment under appeal.

(
[34](#c-ECR_62020CC0235_EN_01-E0034)
) Judgment of 21 October 2010 ([T‑439/08](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2010%3A442&locale=en), not published, [EU:T:2010:442](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2010%3A442)).

(
[35](#c-ECR_62020CC0235_EN_01-E0035)
) See, to that effect, the judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA ([C‑178/18 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A24&locale=en), [EU:C:2020:24](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A24), paragraphs [56](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A24&anchor=#point56) and [57](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A24&anchor=#point57)).

(
[36](#c-ECR_62020CC0235_EN_01-E0036)
) Paragraphs 58 to 61 of the judgment under appeal.

(
[37](#c-ECR_62020CC0235_EN_01-E0037)
) The General Court rejected that application by its judgment of 10 March 2021, ViaSat v Commission ([T‑245/17](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2021%3A128&locale=en), [EU:T:2021:128](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2021%3A128)), which has become final.

(
[38](#c-ECR_62020CC0235_EN_01-E0038)
) Judgments of 9 December 2020, Groupe Canal + v Commission ([C‑132/19 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A1007&locale=en), [EU:C:2020:1007](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A1007), paragraph [28](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A1007&anchor=#point28)), and of 21 January 2021, Leino-Sandberg v Parliament ([C‑761/18 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A52&locale=en), [EU:C:2021:52](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A52), paragraph [27](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A52&anchor=#point27)).

(
[39](#c-ECR_62020CC0235_EN_01-E0039)
) Judgment of 14 February 2008 ([C‑450/06](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2008%3A91&locale=en), [EU:C:2008:91](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2008%3A91)).

(
[40](#c-ECR_62020CC0235_EN_01-E0040)
) Ibid., in paragraph 52.

(
[41](#c-ECR_62020CC0235_EN_01-E0041)
) Ibid., in paragraph 55.

(
[42](#c-ECR_62020CC0235_EN_01-E0042)
) See, to that effect, judgment of 28 June 2012, Commission v Éditions Odile Jacob ([C‑404/10 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A393&locale=en), [EU:C:2012:393](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A393), paragraph [133](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A393&anchor=#point133)).

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