Source: EURLEX
Language: en
Format: md

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

7 September 2017 ([\*](#Footnote*))

(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to a procedure for reviewing State aid — Refusal to grant access — Exception relating to the protection of the purpose of inspections, investigations and audits — Obligation to carry out a specific and individual examination — Overriding public interest)

In Case T‑451/15,

**AlzChem AG,** established in Trostberg (Germany), represented initially by A. Borsos and J. Guerrero-Pérez, and subsequently by A. Borsos, J. Guerrero-Pérez and I. Georgiopoulos, lawyers,

applicant,

v

**European Commission,** represented by A. Buchet, M. Konstantinidis and L. Armati, acting as Agents,

defendant,

ACTION under Article 263 TFEU seeking the annulment of the Commission decision of 26 May 2015 refusing to grant the applicant access to documents relating to a procedure for reviewing State aid,

THE GENERAL COURT (Sixth Chamber),

composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 May 2017,

gives the following

**Judgment**

**Background to the dispute**

1        By its Decision (EU) 2015/1826 of 15 October 2014 on the State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71), the European Commission held that Novácké chemické závody, a.s. (‘NCHZ’), a Slovak chemical company, had received State aid that was unlawful and incompatible with the internal market, in the course of its bankruptcy proceedings. Consequently, the Commission decided that that aid had to be reimbursed not only by NCHZ, but also by Fortischem a.s., as its economic successor.

2        The applicant, AlzChem AG, is a German company which is active in the chemical industry and which, as an interested party, intervened in the procedure that led to Decision 2015/1826. In that capacity, it submitted observations to the Commission on the measures implemented by the Slovak Republic for NCHZ.

3        By letter of 16 March 2015, the applicant submitted to the Commission an application for access to documents, under 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). That application related to three documents (‘the documents at issue’), namely (i) the economic analysis of the administrator of NCHZ dated 23 December 2010, (ii) the ‘NCHZ management presentation’ (NCHZ Nováky — Feasibility Study Reengineering) and (iii) the submissions made by the Slovak Government regarding the interpretation and application of Slovak bankruptcy law.

4        The Commission rejected that application by letter of 27 March 2015, on the ground that the application was covered by the exceptions provided for in Article 4(2) and (3) of Regulation No 1049/2001. More specifically, the Commission held that those exceptions were applicable on the ground, in particular, that the documents at issue were linked to a case concerning State aid that was pending before the General Court. The Commission also stated that no argument capable of establishing the existence of an overriding public interest justifying disclosure had been put forward and that partial access was not possible under the exceptions mentioned above.

5        By letter of 16 April 2015, the applicant sent to the Commission a confirmatory application, in accordance with Article 7(2) of Regulation No 1049/2001. The applicant disputed the Commission’s refusal, maintaining, inter alia, that the documents at issue did not fall within the scope of the exceptions relied on by the Commission, and were not covered by a general presumption. The applicant also argued that there was an overriding public interest that justified the disclosure of the documents at issue.

6        By decision of 26 May 2015 (‘the contested decision’), the Commission confirmed its refusal to grant access to the entirety of the documents at issue.

7        First, the Commission stated that the documents at issue were part of the file relating to a case pending before the General Court, concerning an investigation into State aid, with respect to which the procedure could not be considered to be closed since, depending on the judgment to be delivered by the General Court, the Commission could be obliged to reconsider its position and reopen the case. The Commission therefore considered that the documents at issue fell, first, within the scope of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of investigations, and, secondly, within the scope of the exception provided for in Article 4(3) of Regulation No 1049/2001, on the protection of the decision-making process.

8        Second, the Commission considered that the documents at issue did not fall within the public domain and were known only to a limited number of persons. More specifically, they concerned commercial information and contained sensitive data about NCHZ’s activities. The Commission also stated that those documents were less than five years old and contained a detailed analysis of NCHZ’s business and assets. Furthermore, even though NCHZ itself was bankrupt and not engaged in commercial activities, the business was currently being operated by Fortischem, as its economic successor. Accordingly, the Commission was of the opinion that the documents at issue were covered by the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001 on the protection of commercial interests.The Commission further held that, although the presumption recognised in the judgment of 7 July 2010, *Agrofert Holding* v *Commission* (T‑111/07, not published, EU:T:2010:285), did not exclude the possibility of demonstrating that some of the documents whose disclosure was requested were not covered by that presumption, the applicant had nevertheless failed to do so.

**Procedure and forms of order sought**

9        By application lodged at the Court Registry on 5 August 2015, the applicant brought the present action.

10      Acting on a proposal from the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure.

11      The parties presented oral argument and answered the questions put by the Court at the hearing on 3 May 2017.

12      The applicant claims that the Court should:

–        declare the action admissible and well founded;

–        annul the contested decision;

–        order the Commission to pay the costs.

13      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

**Law**

14      In support of its action, the applicant relies on three pleas in law: (i) an error in law and a manifest error of assessment regarding the application of a general presumption in relation to the exception concerning the protection of investigations carried out by the EU institutions; (ii) an error in law and a manifest error of assessment relating to the application of the exception concerning the protection of commercial interests, and (iii) a breach of the obligation to state reasons for the refusal to grant access to documents in a non-confidential version or on the Commission’s premises.

*First plea in law: error in law and manifest error of assessment relating to the application of a general presumption in relation to the exception for the protection of investigations carried out by the EU institutions*

15      The applicant’s first plea in law has four parts: (i) an error in law regarding the application of a general presumption; (ii) an error in law relating to the protection of the purposes of an investigation; (iii) an error in law and a manifest error in assessment of the overriding public interest in protecting the right to effective judicial review, and (iv) an error in law in the application of the fundamental right of access to documents.

*The first part: error in law regarding the application of a general presumption*

16      The applicant claims that the Commission erred in law in relying on the ‘doctrine of the general exceptions’ in order to refuse access to the documents at issue, on the basis of Article 4(2) of Regulation No 1049/2001. The applicant considers that the general presumption relied upon by the Commission cannot be applied when the application for access concerns specific documents.

17      The Commission does not accept the applicant’s arguments.

18      In that regard, it must be stated that Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions (judgment of 1 February 2007, *Sison* v *Council*, C‑266/05 P, EU:C:2007:75, paragraph 61). It is also apparent from that regulation, in particular from Article 4 thereof, which lays down a set of exceptions in that regard, that the right of access is nevertheless subject to certain limits based on reasons of public or private interest (judgments of 1 February 2007, *Sison* v *Council*, C‑266/05 P, EU:C:2007:75, paragraph 62; of 29 June 2010, *Commission* v *Technische Glaswerke Ilmenau*, C‑139/07 P, EU:C:2010:376, paragraph 51, and of 27 February 2014, *Commission* v *EnBW*, C‑365/12 P, EU:C:2014:112, paragraph 61).

19      In accordance with settled case-law, in order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) and (3) of Regulation No 1049/2001. The institution concerned must also provide explanations as to how access to that document could specifically and actually harm the interest protected by one of the exceptions provided for in that article (see judgment of 27 February 2014, *Commission* v *EnBW*, C‑365/12 P, EU:C:2014:112, paragraph 64 and the case-law cited).

20      However, it is open to the institution concerned 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 (see judgment of 27 February 2014, *Commission* v *EnBW*, C‑365/12 P, EU:C:2014:112, paragraph 65 and the case-law cited).

21      The *ratio legis* that underlies the application of general presumptions, as referred to in paragraph 20 above, 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 those procedures could be undermined, since the general presumptions ensure that the integrity of the conduct of the procedure can be preserved by limiting intervention by third parties (see, to that effect, judgment of 26 May 2016, *International Management Group* v *Commission*, T‑110/15, EU:T:2016:322, paragraph 32).

22      The existence of general presumptions has been accepted, in particular, with respect to documents in the administrative file relating to a procedure for reviewing State aid (see, to that effect, judgments of 29 June 2010, *Commission* v *Technische Glaswerke Ilmenau*, C‑139/07 P, EU:C:2010:376, paragraph 61, and of 25 March 2015, *Sea Handling* v *Commission*, T‑456/13, not published, EU:T:2015:185, paragraph 59), such as the documents at issue in this case. Specifically, it has been held that, for the purposes of the interpretation of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, it was necessary to recognise the existence of a general presumption that the disclosure of documents in the administrative file would, as a general rule, undermine the protection of investigations (judgment of 25 March 2015, *Sea Handling* v *Commission*, T‑456/13, not published, EU:T:2015:185, paragraph 63).

23      What determines the application of the general presumption of refusal of access is therefore the fact that the documents at issue relate to a procedure for reviewing State aid.

24      In this case, the applicant considers that such a general presumption can be used only if the application for access concerns categories or sets of documents, described as a whole. Further, the judgment of 25 October 2013, *Beninca* v *Commission* (T‑561/12, not published, EU:T:2013:558), relied on by the Commission, ‘reflects’, according to applicant, the application of the general presumption to a single document in the context of merger control proceedings and is not applicable in the present case. The applicant concludes that the only possible coherent interpretation of the case-law of the Court of Justice is that the general presumption is not applicable where the application for access concerns specific documents.

25      First, as stated in paragraph 23 above, it must be observed that the mere fact that the documents at issue were part of the administrative file relating to a procedure for reviewing State aid was sufficient ground for the application of the general presumption that documents concerning such a procedure are confidential, regardless of whether the documents targeted by the application for access were specifically identified or few in number. It must be observed that, were there to be imposed a condition as regards the minimum number of documents that must be covered by a request for access before a general presumption of refusal of access can apply, that would not only cause practical difficulties, in determining what that minimum number should actually be, but would also be irreconcilable with the reasons which underlie the recognition of that general presumption, particularly in procedures for the review of State aid, that is to say, the proper conduct of those procedures and the risk of jeopardising their outcome (see paragraphs 21 and 22 above). The criterion that determines whether the general presumption of refusal is applicable is therefore qualitative, namely the fact that the documents relate to such a procedure, and not, as claimed by the applicant, quantitative, namely how many or how few documents are covered by the application for access concerned (see, to that effect and by analogy, judgment of 25 September 2014, *Spirlea* v *Commission*, T‑306/12, EU:T:2014:816, paragraphs 74 and 75).

26      The applicant is therefore wrong to claim that the general presumption can be used only if the application for access relates to categories or sets of documents, described as a whole.

27      Second, it must be observed that, as the Commission states in the contested decision, the General Court has already held, in the judgment of 25 October 2013, *Beninca* v *Commission* (T‑561/12, not published, EU:T:2013:558, paragraph 32), that the general presumption was applicable even if only one document was the subject of an application for access.

28      Although the judgment of 25 October 2013, *Beninca* v *Commission* (T‑561/12, not published, EU:T:2013:558), concerns merger control proceedings, its scope must be extended, by analogy, to procedures for reviewing State aid. That outcome follows from the case-law of the Court of Justice, which has had occasion to find that, from the perspective of access to the administrative file, the procedures for reviewing State aid and merger control proceedings are comparable (see, to that effect, judgment of 28 June 2012, *Commission* v *Éditions Odile Jacob*, C‑404/10 P, EU:C:2012:393, paragraphs 116 to 123).

29      It may be added that the possibility of the general presumption covering only a single given document was specifically accepted subsequently in the context of a procedure for reviewing State aid (judgment of 25 March 2015, *Sea Handling* v *Commission*, T‑456/13, not published, EU:T:2015:185, paragraph 64). Further, in the judgment of 28 June 2012, *Commission* v *Éditions Odile Jacob* (C‑404/10 P, EU:C:2012:393, paragraphs 127 and 130), the Court of Justice also recognised that the general presumption could be applied to a category of documents even where the application for access related in fact to only two documents.

30      Accordingly, in the light of the foregoing, the Commission was correct to take the view that the general presumption could apply in this case, even though the application for access related to only three specific documents.

31      Third, contrary to what is claimed by the applicant, the existence of the general presumption that the disclosure of documents in the administrative file would, as a general rule, undermine the protection of the purposes of investigations does not mean that the applicant does not have the right to demonstrate, if he can, that one or more given documents, disclosure of which is sought, are not covered by that presumption or that there exists an overriding public interest in their disclosure pursuant to Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgments of 29 June 2010, *Commission* v *Technische Glaswerke Ilmenau*, C‑139/07 P, EU:C:2010:376, paragraph 62, and of 27 February 2014, *Commission* v *EnBW*, C‑365/12 P, EU:C:2014:112, paragraph 100).

32      In that regard, the general presumption that the disclosure of documents in an administrative file would, as a general rule, undermine the protection of the purposes of investigations is not irrebuttable and does not rule out the possibility that some of the specific documents contained in the Commission’s file relating to a procedure for reviewing State aid may be disclosed (see, to that effect, judgment of 14 July 2016, *Sea Handling* v *Commission*, C‑271/15 P, not published, EU:C:2016:557, paragraph 42), and consequently the applicant’s argument cannot be upheld.

33      Consequently, the first part of the first plea in law must be rejected as being unfounded.

*The second part: error in law regarding the protection of investigations*

34      The applicant considers that the disclosure of the documents at issue cannot undermine the Commission’s investigations, given that the procedure has been closed. In addition, the applicant states that the investigation was not based solely on the documents at issue. The applicant also considers that the Commission could open a new investigation at any point in the future, which could jeopardise access to the documents. The applicant further considers that the disclosure of the documents at issue cannot damage the cooperation between the Commission and the Member States, with regard to State aid investigations. Last, the applicant believes that, since two of the documents at issue were not prepared specifically for the purpose of the Commission’s investigation, there is no reason not to disclose them.

35      The Commission disputes the applicant’s arguments.

36      In this case, it is common ground that the documents at issue relate to an investigation, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. The applicant is seeking access to various documents within the Commission’s administrative file concerning a procedure for reviewing State aid that led to Decision 2015/1826, and there can be no dispute that that is part of an investigation.

37      It must be recalled that, by virtue of the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, the institutions, unless there is an overriding public interest in disclosure, are to refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits.

38      For the purposes of interpreting the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, it is necessary to take into consideration the fact that interested parties, other than the Member State responsible for granting the aid, do not have the right, within the procedure for reviewing State aid, to consult the documents in the Commission’s administrative file (see, to that effect, judgment of 29 June 2010, *Commission* v *Technische Glaswerke**Ilmenau*, C‑139/07 P, EU:C:2010:376, paragraph 61).

39      First, the applicant argues that the general presumption cannot be applied to documents that are part of a closed investigation procedure.

40      The Commission does not accept that argument.

41      It must be noted that the disclosure of the documents at issue is liable to undermine the protection of investigations relating to a procedure under Article 108 TFEU, even a closed procedure, when a legal action brought against the decision on the substance is pending (see, to that effect, judgment of 25 March 2015, *Sea Handling* v *Commission*, T‑456/13, not published, EU:T:2015:185, paragraph 70; see also, to that effect and by analogy, judgment of 27 February 2014, *Commission* v *EnBW*, C‑365/12 P, EU:C:2014:112, paragraph 98).

42      The reason for that approach is that account must be taken of the fact that it is open to the Commission, depending on the outcome of the legal proceedings, to resume its investigations with a view to the possible adoption of a further decision (judgment of 25 March 2015, *Sea Handling* v *Commission*, T‑456/13, not published, EU:T:2015:185, paragraph 71; see also, by analogy, judgment of 27 February 2014, *Commission* v *EnBW*, C‑365/12 P, EU:C:2014:112, paragraph 99).

43      In this case, while the investigation procedure concerned has indeed been closed by the adoption of Decision 2015/1826, the fact remains that an action against that decision is currently pending before the General Court.

44      Second, the applicant believes that, since Decision 2015/1826 was not based solely on the documents at issue, the purposes of any investigation to be effected by the Commission cannot be jeopardised.

45      The Commission does not accept that argument.

46      In that regard, first, it is not for the General Court to question, in the present case, the exact role played by the documents at issue in the adoption of Decision 2015/1826 by the Commission. Second, suffice it to state that those documents were obtained by the Commission in the course of its investigation and, for that reason alone, contributed to the adoption of that decision, with the result that, as stated in paragraph 23 above, they were covered by the general presumption of refusal of access.

47      Moreover, as stated in paragraph 32 above, the application of the general presumption does not rule out the possibility that some of the specific documents contained in the Commission’s file relating to a procedure for reviewing State aid might be disclosed. The applicant has however failed to establish that that should be the position in this case, as is apparent from in particular paragraphs 62 to 74 below.

48      Third, the applicant believes that that there are various situations in which the Commission may revoke or reassess some decisions on State aid and that the Commission could consequently open a new investigation, at any point in time, without any limitation in time. Accordingly, the applicant submits, access to documents of closed State aid investigations could be indefinitely refused.

49      The Commission does not accept that argument.

50      Contrary to what is claimed by the applicant, the protection granted by the case-law set out in paragraph 41 above does not at all entail that access to documents in the context of a procedure for reviewing State aid is prevented indefinitely. That protection, which is granted in order to enable the Commission to adopt, if appropriate, a new decision, is exclusively linked to the outcome of legal proceedings, and not to all the options available to the Commission to revoke or reassess its own decisions.

51      Fourth, the applicant considers that the position adopted by the Court of Justice in its judgment of 28 June 2012, *Commission* v *Agrofert Holding* (C‑477/10 P, EU:C:2012:394, paragraph 66), in the context of an application for access to documents relating to a merger does not permit the conclusion that the disclosure of the documents at issue could have an adverse effect on the willingness of the Member States to cooperate in State aid investigations.

52      The Commission does not accept the applicant’s argument.

53      In that regard, it must be recalled that, in merger control proceedings, the prospect of publication, after the closure of such proceedings, of sensitive information concerning the economic activities of the undertakings involved could have an adverse effect on the willingness of undertakings to cooperate when such proceedings are pending (see, to that effect, judgment of 28 June 2012, *Commission* v *Agrofert Holding*, C‑477/10 P, EU:C:2012:394, paragraph 66). It follows that cooperation with the interested parties during an investigation procedure must be maintained.

54      As regards procedures for reviewing State aid, it must be observed that the documents pertaining to those procedures fall within a framework of administrative tasks specifically assigned to the EU institutions by Article 108 TFEU.

55      The Member State responsible for the granting of aid has moreover a specific role, since it has, in the course of the procedure for reviewing State aid, the right to consult the documents in the Commission’s administrative file, unlike other interested parties (see, to that effect, judgment of 29 June 2010, *Commission* v *Technische Glaswerke Ilmenau*, C‑139/07 P, EU:C:2010:376, paragraph 61).

56      Furthermore, it is essential that there should be sincere cooperation and mutual trust between the Commission and the Member State responsible for the granting of aid, in the context of investigations concerning the compatibility of State aid with the internal market, so that the various parties should be in a position freely to express their views.

57      It follows from the foregoing that, for the same reasons as relied on in merger control proceedings, stated in paragraph 55 above, and taking into account the particular position of the Member State concerned in the context of a procedure for reviewing State aid, it must be recognised that, as a general rule, the disclosure of documents pertaining to those investigations would jeopardise dialogue and, consequently, cooperation between the Commission and that Member State.

58      Last, the applicant refers to the fact that two of the documents at issue were not prepared for the Commission’s investigation with a view to the adoption of Decision 2015/1826. Consequently, according to the applicant, their disclosure would not infringe either the rights of the defence or any other right associated with a party’s intervention in the administrative procedure for reviewing State aid.

59      The Commission does not accept that argument.

60      It must be stated, and this is moreover not disputed, that the documents at issue are part of the Commission’s administrative file relating to a procedure for reviewing State aid. The fact that they are part of the administrative file is a necessary and sufficient reason to confer on those documents the benefit of the general presumption described in paragraph 22 above, and consequently the applicant’s argument is ineffective.

61      Consequently, it follows from all the foregoing that the second part of the first plea in law must be rejected as being unfounded.

*Third part: an error in law and a manifest error of assessment regarding the overriding public interest in protecting the right to an effective judicial remedy*

62      The applicant considers that, assuming that the documents at issue are indeed covered by the general presumption, that presumption is displaced by an overriding public interest in protecting the right to an effective judicial remedy.

63      The Commission does not accept the applicant’s argument.

64      In that regard, it must be noted that, under Article 4(2) of Regulation No 1049/2001 ‘[t]he institutions shall refuse access to a document where disclosure would undermine the protection’ of, inter alia, ‘commercial interests of a natural or legal person, including intellectual property’ ... and ‘the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure’.

65      In that context, it is for the institution concerned to weigh the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages of increased openness, as described in recital 2 of Regulation No 1049/2001, in that it enables citizens better to participate in the decision-making process and guarantees that the administrative authority enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (judgments of 1 July 2008, *Sweden and Turco* v *Council*, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 45, and of 3 July 2014, *Council* v *in ’t Veld*, C‑350/12 P, EU:C:2014:2039, paragraph 53).

66      Accordingly, the system of exceptions laid down in Article 4 of Regulation No 1049/2001, and particularly in Article 4(2), is based on a weighing of the opposing interests in a given situation, that is to say, on the one hand, the interests which would be promoted by the disclosure of the documents in question and, on the other, those which would be jeopardised by such disclosure.The decision taken on a request for access to documents depends on what interest must prevail in the particular case (judgment of 14 November 2013, *LPN and Finland* v *Commission*, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 42).

67      Those are the principles that the Court must have in mind when examining whether the right to an effective judicial remedy, relied on by the applicant, can in itself constitute an overriding public interest.

68      In this case, in the first place, it must be recalled that the requirement of judicial review constitutes a general principle of EU law, stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. The right to an effective remedy has, moreover, been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union (see judgment of 9 September 2009, *Brink’s Security Luxembourg* v *Commission*, T‑437/05, EU:T:2009:318, paragraph 75 and the case-law cited).

69      In the second place, in accordance with settled case-law, if the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court with jurisdiction (see, to that effect, judgment of 4 June 2013, *ZZ*, C‑300/11, EU:C:2013:363, paragraph 53 and the case-law cited).

70      In this case, the applicant had access to Decision 2015/1826 and has been able to challenge it before the General Court by means of an action, now pending, brought under Article 263 TFEU, which demonstrates the reality of its right to an effective remedy. In that regard, it must be noted that Article 47 of the Charter of Fundamental Rights is not intended to change the system of judicial review laid down by the Treaties (judgment of 3 October 2013, *Inuit Tapiriit Kanatami and Others* v *Parliament and Council*, C‑583/11 P, EU:C:2013:625, paragraph 97).

71      Moreover, although the applicant claims that there is an overriding public interest in the protection of the right to an effective remedy, the applicant is in fact asserting its own individual interest, since the application for disclosure of the documents at issue would, as the applicant itself admits, have an interest for the action that it has brought against Decision 2015/1826, currently pending before the General Court.

72      An overriding public interest must however be objective and general in nature and must not be indistinguishable from individual or private interests, such as those relating to the pursuit of an action brought against the institutions of the European Union (judgment of 20 March 2014, *Reagens* v *Commission*, T‑181/10, not published, EU:T:2014:139, paragraph 142).

73      It follows that the application for access to the documents at issue, submitted by the applicant, concerns a private interest (see, to that effect, judgments of 28 June 2012, *Commission* v *Éditions Odile Jacob*, C‑404/10 P, EU:C:2012:393, paragraph 146, and of 20 March 2014, *Reagens* v *Commission*, T‑181/10, not published, EU:T:2014:139, paragraphs 145 and 146), and not an overriding public interest that justifies the disclosure of those documents.

74      Consequently, the third part of the first plea in law must be held to be unfounded.

*Fourth part: an error in law regarding the application of the fundamental right of access to documents*

75      The applicant considers that if the General Court were to reject the first three parts of the first plea, Regulation No 1049/2001 would be deprived of its purpose and rendered ineffective, in breach of Article 42 of the Charter of Fundamental Rights.

76      The Commission does not accept the applicant’s argument.

77      Under Article 15(3) TFEU, read together with Article 42 of the Charter of Fundamental Rights, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to the documents of the Union’s institutions, bodies, offices and agencies, subject to the principles and conditions to be defined in accordance with Article 15(3). By virtue of the second subparagraph of Article 15(3), those principles and conditions are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure.

78      More specifically, and pursuant to the provisions mentioned in paragraph 77 above, it is by means of Regulation No 1049/2001 that a right of access to the documents of the institutions that is as wide as possible is conferred on the public (see, to that effect, judgment of 25 March 2015, *Sea Handling* v *Commission*, T‑456/13, not published, EU:T:2015:185, paragraph 52).

79      Accordingly, the principles laid down by Regulation No 1049/2001 are those which must guide the Court in its assessment of the argument set out by the applicant in this part of the first plea in law.

80      It must be borne in mind that the administrative activity of the Commission does not require such extensive access to documents as that required by the legislative activity of an EU institution (judgment of 27 February 2014, *Commission* v *EnBW*, C‑365/12 P, EU:C:2014:112, paragraph 91), which is why the Commission may refuse access to some documents, in accordance with the exceptions laid down in Article 4 of Regulation No 1049/2001.

81      In that regard, as is said by the applicant itself, the exceptions laid down in Article 4 of Regulation No 1049/2001 must be interpreted strictly. That principle of strict interpretation also means that the institution that relies on one of those exceptions must explain how access to that information could specifically and actually harm the interest protected by those exceptions (see, to that effect, judgment of 25 October 2013, *Beninca* v *Commission*, T‑561/12, not published, EU:T:2013:558, paragraph 23).

82      However, contrary to what is claimed by the applicant, the case-law does not lead to a *de facto* obstruction of any access to documents during the phase of the procedure for reviewing State aid where effective judicial review of those documents can be exerted.

83      Recourse by the Commission to the general presumption does not deny to the applicant, as was stated in paragraph 32 above, the possibility of demonstrating that the documents at issue, disclosure of which is requested, are not covered by that presumption or that there exists, pursuant to the last clause of Article 4(2) of Regulation No 1049/2001, an overriding public interest in the disclosure of the documents at issue (see, to that effect, judgment of 29 June 2010, *Commission* v *Technische Glaswerke Ilmenau*, C‑139/07 P, EU:C:2010:376, paragraph 62).

84      Last, in its reply, the applicant elaborates its argument that the application and interpretation of Regulation No 1049/2001 are contrary to Article 42 of the Charter of Fundamental Rights and Article 15(3) TFEU. Nonetheless, the applicant states that it does not dispute the legality of Regulation No 1049/2001, as it confirmed, moreover, at the hearing.

85      In that regard, it must be observed that, although the applicant does not challenge Regulation No 1049/2001 as such, since, in particular, no plea of illegality has been submitted, the applicant recognises, at least implicitly, that that regulation is not contrary to Article 42 of the Charter of Fundamental Rights.

86      Accordingly, the aim of the applicant’s argument is in reality solely to call into question the case-law of the Courts of the European Union, case-law that it considers to be contrary to Article 42 of the Charter of Fundamental Rights.

87      That argument cannot be upheld, since the Court has already had occasion to give a ruling on the scope of the case-law of the Courts of the European Union with respect to the other three parts of this plea. In any event, since Regulation No 1049/2001 does not infringe the Charter of Fundamental Rights and since the Courts of the European Union interpret the regulation in accordance with that higher ranking law, the case-law necessarily takes account of Article 42 of the Charter of Fundamental Rights.

88      Last, the practices of the Member States in relation to access to documents, as referred to by the applicant, can have no influence on the interpretation of Regulation No 1049/2001, which lays down a body of rules that is applicable exclusively to documents of the EU institutions and that is independent of comparable bodies of rules developed within those Member States.

89      Consequently, the fourth part of the first plea must be rejected as being unfounded, and the first plea in law must be rejected in its entirety.

90      In that regard, it must be observed that the rejection of the first plea in law means that it is unnecessary to examine the second plea in law. At the hearing, the Commission stated, correctly, with no objection by the applicant, that the exception that covers the protection of the investigations carried out by the EU institutions, which is the subject matter of the first plea in law, was an independent and sufficient basis to justify the adoption of the contested decision. Consequently, any error that might vitiate the second ground for the decision, in relation to the exception covering the protection of commercial interests, has in any event, according to the Commission, no effect on the legality of that decision.

*The third plea in law: breach of the obligation to state reasons for the refusal to grant access to documents in a non-confidential version or on the Commission’s premises*

91      The applicant argues the Commission did not duly take into account the possibility of granting partial access to the documents referred to in its application for access, in accordance with Article 4(6) of Regulation No 1049/2001, and provided no statement of reasons for its decision in this respect. The applicant also submits that the Commission did not state reasons for its refusal to grant access to the documents on its premises.

92      The Commission does not accept the applicant’s argument.

93      In that regard, it is clear from the very wording of Article 4(6) of Regulation No 1049/2001 that an institution is required to consider whether it is appropriate to grant partial access to requested documents and to limit any refusal solely to information covered by the relevant exceptions. The institution must grant such partial access if the aim pursued by that institution, in refusing access to a document, may be achieved by merely redacting the passages which might harm the public interest to be protected (judgments of 25 April 2007, *WWF European Policy Programme* v *Council*, T‑264/04, EU:T:2007:114, paragraph 50, and of 12 September 2013, *Besselink* v *Council*, T‑331/11, not published, EU:T:2013:419, paragraph 84; see also, to that effect, judgment of 6 December 2001, *Council* v *Hautala*, C‑353/99 P, EU:C:2001:661, paragraph 29).

94      However, as regards access to the documents with respect to which the general presumption is applicable, such as, in this case, documents relating to the procedures for reviewing State aid, in accordance with that case-law, the effect of that presumption is that the documents covered by it do not fall within an obligation of disclosure, in full or in part, of their content (see, to that effect and by analogy, judgment of 28 June 2012, *Commission* v *Éditions Odile Jacob*, C‑404/10 P, EU:C:2012:393, paragraph 133).

95      Further, in accordance with settled case-law, the reasons for any decision adopted by an institution on the basis of the exceptions set out in Article 4 of Regulation No 1049/2001 must be stated (judgments of 1 July 2008, *Sweden and Turco* v *Council*, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 48; of 11 March 2009, *Borax Europe* v *Commission*, T‑166/05, not published, EU:T:2009:65, paragraph 44, and of 12 September 2013, *Besselink* v *Council*, T‑331/11, not published, EU:T:2013:419, paragraph 96).

96      In this case, sufficient reasons for the refusal of disclosure must be held to have been stated, contrary to what is claimed by the applicant, in that, in paragraph 3 of the contested decision, the Commission examined the possibility of granting the applicant partial access to the documents at issue.

97      More specifically, the Commission stated that the documents at issue were manifestly and entirely covered by the exceptions laid down in the first and third indents of Article 4(2) of Regulation No 1049/2001 and that, accordingly, there was no obligation to disclose their content, wholly or in part (see, to that effect, judgment of 25 March 2015, *Sea Handling* v *Commission*, T‑456/13, not published, EU:T:2015:185, paragraph 92).

98      Accordingly, in the light of paragraphs 96 and 97 above, the Commission was under no obligation to provide any specific reasons with respect to the two proposals, made by the applicant, concerning, on the one hand, the obtaining of a non-confidential version from which commercially sensitive information was deleted and, on the other, the possibility of consulting the documents at issue on the premises of the Commission.

99      Consequently, the third plea must be rejected as being unfounded.

100    It follows from all the foregoing that the action must be dismissed as being unfounded.

**Costs**

101    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      **Dismisses the action;**

2.      **Orders AlzChem AG to pay the costs.**

|  |  |  |
| --- | --- | --- |
| Berardis | Papasavvas | Spineanu-Matei |

Delivered in open court in Luxembourg on 7 September 2017.

|  |  |  |
| --- | --- | --- |
| E. Coulon |  | D. Gratsias |

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| --- | --- | --- |
| Registrar |  | President |

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[\*](#Footref*)      Language of the case: English.

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