AlzChem AG v European Commission.
Date: 2019-03-13
In the first place, as regards the application of the general presumption of confidentiality when the request for access concerns documents which have been specifically identified and are few in number, it must be recalled that it follows from the case-law of the Court of Justice that it is not only necessary to recognise the existence of a general presumption to the effect that the disclosure of the documents in the Commission’s administrative file in a State aid review procedure in principle, undermines the protection of the purpose of an investigation, audit or inspection (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 61), but also that that presumption applies irrespective of whether or not the application for access specifically identified the document or documents concerned (judgment of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraph 54).
However, as the General Court correctly recalled in paragraphs 31 and 83 of the judgment under appeal with reference to the case-law of the Court of Justice in that regard, the general presumption of confidentiality certainly does not preclude the appellant’s right to show that one or more given documents, whose disclosure it has requested, are not covered by that presumption or that there is an overriding public interest in their disclosure by virtue of Article 4(2) of Regulation No 1049/2001 (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 62).
In paragraph 32 of the judgment under appeal, the General Court also stated correctly that 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).
Finally, it must be noted that the Court of Justice has previously held that the fact that it is difficult to adduce the evidence necessary to rebut a presumption does not in itself mean that that presumption is in fact irrebuttable (see, to that effect, judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 81).
AlzChem’s arguments merely constitute repetition of the arguments previously set out in its application before the General Court, to which, moreover, that Court responded in paragraphs 36 to 61 of the judgment under appeal, and seek, in reality, to obtain no more than re-examination of the same arguments, which the Court of Justice does not have jurisdiction to undertake (see, to that effect, judgment of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraph 24).
However, after noting, rightly, in paragraphs 65 to 66 of the judgment under appeal, the need, for the institution concerned to weigh, on the one hand, the particular interest to be protected by non-disclosure of the document concerned against, on the other hand, inter alia, the public interest in the document being made accessible (see, to that effect, 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), the General Court was also right to state, in paragraph 69 of the judgment under appeal, that if the judicial review 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, so as to make it possible for him to defend his rights 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).
The General Court was therefore fully entitled to find, first, in paragraph 70 of the judgment under appeal, that the appellant had not been deprived of its right to an effective judicial remedy, since it had had access to Decision 2015/1826 of 15 October 2014, referred to in paragraph 10 of the present judgment and had been able to bring its action for annulment, and, secondly, in paragraph 73 of that judgment, in reliance on paragraph 146 of the judgment of 28 June 2012, Commission v Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393), that the fact that the documents would have enabled the applicant to present more convincing arguments in its action for annulment does not constitute an overriding public interest in their disclosure, for the purposes of Article 4(2) of Regulation No 1049/2001, but rather a ‘private’ interest not covered by that article — that case-law also being applicable to the field of State aid (see, also, to that effect, judgment of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraphs 97 to 99).
Moreover, contrary to what the appellant appears to claim, the General Court did not consider, in paragraph 80 of the judgment under appeal, that it was necessary to confer ‘limited access’ with regard to documents linked to administrative procedures, but merely recalled that, as is apparent from the case-law of the Court of Justice, 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 (see, inter alia, to that effect, judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 60, and of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 91).
It must be held that the General Court was right to find, in paragraph 94 of the judgment under appeal, with reference to the case-law of the Court, that the documents covered by the general presumption of confidentiality do not fall within an obligation of disclosure, in full or in part, of their content (see, to that effect, judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 133, and of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraph 61).