European Commission v Technische Glaswerke Ilmenau GmbH.
Date: 2010-06-29
12. By letter of 1 December 1998, the Federal Republic of Germany notified the Commission of various measures designed to consolidate TGI’s financial position, including a partial waiver of payment and a bank loan.
13. On 4 April 2000, the Commission initiated the formal investigation procedure under Article 88(2) EC concerning the said payment waiver and loan, which procedure was given the reference C 19/2000.
14. By a decision of 12 June 2001, in which it confined its assessment to the payment waiver alone, the Commission held that that measure constituted State aid incompatible with the common market. TGI challenged that decision by bringing an action for annulment before the General Court on 28 August 2001, which was dismissed by the judgment of 8 July 2004 in Case T-198/01 Technische Glaswerke Ilmenau  v Commission  [2004] ECR II‑2717, confirmed on appeal by the Court of Justice on 11 January 2007 in Case C-404/04 P.
15. On 3 July 2001, the Commission opened a second formal investigation procedure pursuant to Article 88(2) EC, under reference C 44/2001, concerning in particular the bank loan.
16. By letter of 24 October 2001, TGI submitted its observations in respect of the second formal investigation procedure and requested the Commission to give it access to a non-confidential version of the file and the opportunity to submit, subsequently, further observations. That request was rejected by the Commission by letter of 23 November 2001.
17. By letter of 1 March 2002, TGI applied, on the basis of Regulation No 1049/2001, for access to all documents in the Commission’s files in all the aid cases concerning TGI, particularly in aid case C 44/2001, and to all documents in the Commission’s files concerning State aid for the undertaking Schott Glas, save for business secrets relating to other undertakings.
18. By letter of 27 March 2002, the Commission rejected that application for access stating, in particular, that the documents sought were covered by the exception in Article 4(2) of Regulation No 1049/2001. The Commission also stated that the documents concerning TGI were documents forming part of the current formal investigation procedure C 44/2001.
19. By letter of 15 April 2002, TGI sent the Secretary-General of the Commission a confirmatory application for access to the same documents, pursuant to Article 7(2) of Regulation No 1049/2001.
20. By the contested decision, the Secretary-General rejected the application for access, confirming the refusal already given to TGI on the ground that disclosure of those various documents would be likely to undermine the protection of the purpose of inspections and investigations, that exception from the right of access being expressly provided for by Article 4(2), third indent, of Regulation No 1049/2001.
21. That decision further indicates that, since TGI’s application implied giving it access to a document containing a detailed description of a project of Schott Glas, that would be likely seriously to harm the commercial interests of that company, that interest being expressly protected by an exception to the right of access, laid down in Article 4(2) of the said regulation. Whilst the possibility had been considered of making accessible the parts of the requested documents which were not covered by those exceptions, it had been found that those documents could not be divided into confidential and non-confidential parts. Furthermore, there was no overriding public interest justifying disclosure of the documents in question.
22. On 2 October 2002, at the conclusion of the second formal investigation procedure under reference C 44/2001, the Commission adopted Decision C(2002) 2147 final concluding, in particular, that the bank loan granted to TGI constituted State aid incompatible with the common market. TGI challenged that decision by bringing an action for annulment before the General Court on 17 December 2002 (Case T-378/02), that case having been since removed from the register by an order of 16 May 2007.
The procedure before the General Court and the judgment under appeal
50. As a preliminary observation, it should be noted that the application made by TGI concerns the whole of the administrative file regarding procedures for reviewing the State aid granted to it.
51. It should be remembered that, having been adopted on the basis of Article 255(2) EC, Regulation No 1049/2001 is designed, as recital 4 and Article 1 thereof indicate, to confer on the public as wide a right of access as possible to documents of the institutions. It is also apparent from the said regulation, in particular from recital 11 and from Article 4 thereof, which lays down a regime of exceptions in that regard, that that right of access is nevertheless subject to certain limits based on reasons of public or private interest.
53. It is true that, 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 fall within an activity mentioned in Article 4(2) of Regulation No 1049/2001. The institution concerned must also supply explanations as to how access to that document could specifically and effectively undermine the interest protected by an exception laid down in that article (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco  v Council  [2008] ECR I‑4723, paragraph 49).
54. However, the Court has acknowledged that it is, in principle, open to the Community institution 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 ( Sweden and Turco , paragraph 50).
55. As regards procedures for reviewing State aid, such general presumptions may arise from Regulation No 659/1999 and from the case-law concerning the right to consult documents on the Commission’s administrative file. In that regard, it should be noted that, according to recital 2 thereof, Regulation No 659/1999 is designed to codify the consistent practice of the Commission in applying Article 88 EC, that practice having been developed and established in conformity with the case-law.
56. Regulation No 659/1999, and, in particular, Article 20 thereof, do not lay down any right of access to documents in the Commission’s administrative file for interested parties in the context of the review procedure opened in accordance with Article 88(2) EC.
57. By contrast, Article 6(2) of the said regulation provides that comments received by the Commission in the context of the said review procedure are to be submitted to the Member State concerned, the latter then having the opportunity to reply to those comments within a given time-limit. The procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible for granting the aid, and the Commission cannot, without infringing the rights of the defence, use in its final decision information on which that Member State was not afforded an opportunity to comment (Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano  v Commission  [2002] ECR I-7869, paragraph 81).
58. It follows from the above that the interested parties, except for the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file. Account must be taken of that fact for the purposes of interpreting the exception laid down by Article 4(2), third indent, of Regulation No 1049/2001. If those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to the documents in the Commission’s administrative file, the system for the review of State aid would be called into question.
59. It is true that the right to consult the administrative file in the context of a review procedure, opened in accordance with Article 88(2) EC, and the right of access to documents, pursuant to Regulation No 1049/2001 are legally distinct, but the fact remains that they lead to a comparable situation from a practical point of view. Whatever the legal basis on which it is granted, access to the file enables the interested parties to obtain all the observations and documents submitted to the Commission, and, where appropriate, adopt a position on those matters in their own observations, which is likely to modify the nature of such a procedure.
60. Moreover, it is important to note that, in contrast with cases where the Community institutions act in the capacity of a legislature, in which wider access to documents should be authorised pursuant to recital 6 of Regulation No 1049/2001, as was the case in Sweden and Turco  v Council , documents relating to procedures for reviewing State aid, such as those requested by TGI, fall within the framework of administrative functions specifically allocated to the said institutions by Article 88 EC.
61. It follows from the above considerations as a whole that, for the purposes of interpreting the exception laid down in Article 4(2), third indent, of Regulation No 1049/2001, the General Court should, in the judgment under appeal, have taken account of the fact that interested parties other than the Member State concerned in the procedures for reviewing State aid do not have the right to consult the documents in the Commission’s administrative file, and, therefore, have acknowledged the existence of a general presumption that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities.
62. That general presumption does not exclude the right of those interested parties to demonstrate that a given document disclosure of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001.
70. The third and fourth branches are unfounded. In its action, TGI neither argues that part of the documents covered by its request were not covered by the general presumption previously referred to in paragraph 61 of this judgment, nor states what higher public interest might justify the disclosure of the documents concerned. As is apparent from its action, it relies merely on its interest as the beneficiary of the State aid concerned by review procedures.