Verschuur v Commission (Action for annulment - Access to documents - Netherlands to Starbucks : Order) [2017] EUECJ T-877/16

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(Action for annulment - Access to documents - Regulation (EC) No 1049/2001 - Document concerning the administrative procedure relating to State aid SA.38374 (2014/C ex 2014/NN) granted by the Netherlands to Starbucks - Refusal to grant access - Action manifestly lacking any foundation in law)

Steven Verschuur, residing in Baarn (Netherlands), represented by P. Kreijger, lawyer,

European Commission, represented by J. Baquero Cruz, A. Buchet and F. Clotuche-Duvieusart, acting as Agents,

ACTION pursuant to Article 263 TFEU seeking the annulment of Commission Decision C(2016) 6455 final of 3 October 2016, rejecting the applicant’s confirmatory 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),

1 By letter of 30 June 2016, the applicant, Mr Steven Verschuur, applied, on the basis 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 (OJ 2001 L 145, p. 43), for access to certain documents relating to the decision of 21 October 2015 concerning the State aid SA.38374 (2014/C ex 2014/NN) granted by the Kingdom of the Netherlands (‘the Starbucks decision’), including, in particular, the document referred to in recital 201 of that decision.

2 By decision of 6 July 2016, the European Commission refused, in particular, to grant access to the document referred to in recital 201 of the Starbucks decision on the basis of the first and third indents of Article 4(2) and on the basis of Article 4(3) of Regulation No 1049/2001.

3 By letter of 19 July 2016, the applicant made a confirmatory application within the meaning of Article 8 of Regulation No 1049/2001.

4 By Decision C(2016) 6455 final of 3 October 2016 (Gestdem 2016/3732) (‘the contested decision’), the Commission rejected the applicant’s confirmatory application, basing that refusal:

- first, in the context of the application of Article 4(2), third indent, of Regulation No 1049/2001, on the general presumption of non-accessibility in regard to documents obtained in the context of a State aid investigation;

- second, by virtue of the application of the first indent of Article 4(2) of that regulation, regarding the harm that would be caused to the commercial interests of the company concerned by disclosure of the documents mentioned in recital 201 of the Starbucks decision (‘the company concerned’);

- third, by application of the first subparagraph of Article 4(3) of the regulation, regarding serious harm to the institution’s decision-making process by the communication requested, to the extent that the institution would be deprived of the possibility of ‘[adopting] a new State aid decision in all independence and free from external pressure’.

5 The applicant brought the present action by application lodged at the Registry of the General Court on 9 December 2016.

- require the Commission, pursuant to Article 91(c) of the Rules of Procedure of the General Court, to produce all the documents containing the observations allegedly made by the company concerned;

7 By separate document, lodged at the Court Registry on 16 December 2016, the applicant repeated his request that the General Court adopt a measure of inquiry, pursuant to Article 91(c) of the Rules of Procedure, requesting that the document or documents mentioned in recital 201 of the Starbucks decision be sent to him.

8 On 13 January 2017, the Commission lodged its observations on the application for a measure of inquiry with the Court Registry, in which it submitted that the application should be rejected and that, if that application were, nevertheless, to be granted, the document in question should not be sent to the applicant. It also requests the General Court to stay the proceedings, pursuant to Article 69(d) of the Rules of Procedure, in order to ask the applicant whether he wishes to continue his action.

9 By order of 28 February 2017 of the President of the Seventh Chamber, the Court ordered the Commission to produce within 15 days a copy of the full version of the document or documents mentioned in recital 201 of the Starbucks decision, thereby granting the first head of claim referred to in paragraph 6 above and the request set out in paragraph 7 above.

10 On 1 March 2017, the General Court decided to extend until 8 May 2017 the period of time granted to the Commission for lodging its defence.

11 The Commission complied with the order referred to in paragraph 9 above by lodging the documents requested with the Court Registry on 14 March 2017.

12 On 26 April 2017, the General Court once more decided to extend until 8 June 2017 the period of time granted to the Commission for lodging its defence.

13 Under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order, without taking further steps in the proceedings, give a decision on the action.

14 In the present case, the Court considers that it has sufficient information from the documents before it and decides to give its decision without taking further steps in the proceedings.

15 In support of his application for annulment, the applicant raises three pleas in law alleging, first, a breach of the third indent of Article 4(2) of Regulation No 1049/2001, concerning the protection of the purpose of investigations, second, a breach of the first subparagraph of Article 4(3) of that regulation, on the protection of the decision-making process of the EU institution concerned, and, third, a breach of the first indent of Article 4(2) of that regulation, relating to the protection of the commercial interests of the company concerned.

16 As regards the first plea, the applicant submits that the Commission’s argument that the document requested is covered by the general presumption of non-accessibility because it was obtained in the context of an ongoing State aid investigation is based on a single factual premise, namely the claim that the observations were provided by the company concerned in response to the opening decision regarding the State aid at issue (‘the opening decision’). He submits that not all of the documents in the administrative file relating to an investigation regarding State aid are covered by that presumption, which covers only documents within a file that the Commission assembled in the context of an investigation into State aid. He states that he is ‘willing to accept that he will not get access to the statement’ of the company concerned ‘if this statement is indeed a response to the State aid opening decision’.

- first, because the Commission did not share the actual statement of the company concerned with the Netherlands authorities, but stated that it had received ‘an observation by a competitor’ ‘of relevance’ to the investigation concerning the State aid, which does not prove that that statement was made in response to the opening decision;

- second, because the supposed subject matter of that statement, namely the ‘value added by the roasting process’, does not relate to that of the State aid opening decision, since the decision does not, according to the applicant, mention roasted coffee, ground coffee or coffee beans, to which the company concerned allegedly referred;

- third, because the Commission itself has not treated that statement as a response to the opening decision;

- fourth, because the title of the PDF file containing the letter of 18 February 2015 addressed by the Commission to the Netherlands authorities and mentioning the statement of the company concerned related to an information request rather than to the observations of a third party;

- fifth, because the structure of the Starbucks decision shows that the alleged statement of the company concerned is not a response to the opening decision, since it appears in that decision in a separate section, namely section 6;

- sixth, because the terms of the contested decision also give the impression that the company concerned had not responded to the opening decision, in particular due to the Commission’s observation that it could use information from whatever source.

18 The Commission submits, in its observations on the application for measures of inquiry, that the key question in the dispute is not whether the alleged statement by the company concerned was a response to the opening decision, but whether the Commission, as the applicant himself acknowledges, obtained the document at issue ‘in the context of a State aid investigation’. That, it argues, is manifestly the case, since the document in question is a reply sent by the company concerned in response to the informal request made by the Commission’s Directorate General (DG) for Competition in the context of its investigation in Case SA.38374 relating to the tax decision taken by the Kingdom of the Netherlands in regard to Starbucks Coffee EMEA BV and Starbucks Manufacturing EMEA BV (‘Starbucks’).

19 As a preliminary point, it is necessary to bear in mind that, under Article 15(3) TFEU, any citizen of the European 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 documents of the Union’s institutions, subject to the principles and the conditions that are defined by EU law. Moreover, the same right is recognised by Article 42 of the Charter of Fundamental Rights of the European Union (order of 25 May 2016, Syndial v Commission, T-581/15, not published, EU:T:2016:337, paragraph 27).

20 Regulation No 1049/2001 seeks, as is indicated in recital 4 and Article 1 thereof, to give the public a right of access to documents of the EU institutions which is as wide as possible. It is also clear from that regulation, in particular from recital 11 and Article 4, which lays down a system of exceptions in that regard, that that right of access is nevertheless subject to certain limits based on grounds of public or private interest. Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (see order of 25 May 2016, Syndial v Commission, T-581/15, not published, EU:T:2016:337, paragraph 28 and the case-law cited).

21 Under the exception relied on by the Commission in the first place, namely, that laid down in the third indent of Article 4(2) of Regulation No 1049/2001, the EU institutions must refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure of the document in question.

22 However, it is possible for the institution concerned to base its decisions on general presumptions which apply to certain categories of documents, as considerations of a generally similar nature are liable to apply to requests for disclosure relating to documents of the same nature (see order of 25 May 2016, Syndial v Commission, T-581/15, not published, EU:T:2016:337, paragraph 33 and the case-law cited).

23 In particular, for the purposes of interpreting the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, it is appropriate to take 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, to acknowledge the existence of a general presumption that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C-139/07 P, EU:C:2010:376, paragraph 61).

24 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 disclosure of the document concerned 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).

25 By his first plea, the applicant submits, in essence, that the documents referred to in recital 201 of the Starbucks decision do not come within the scope of the general presumption set out in paragraph 23 above since they are not a response to the opening decision. However, it must be held that that presumption covers, according to the very wording of the judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C-139/07 P, EU:C:2010:376, paragraph 61), access to ‘documents in the administrative file’ relating to a procedure reviewing State aid and that it is therefore not restricted solely to responses to the opening decision. The applicant’s six grounds of challenge which seek to demonstrate that the documents or documents concerned are not such responses are therefore inoperative.

26 It is necessary, consequently, to examine whether those documents, sent to the Court pursuant to the measure of inquiry referred to in paragraph 9 above, do indeed form part of the administrative file relating to a procedure for reviewing State aid.

27 It appears that those documents are a reply sent by the company concerned in response to an informal request made by DG Competition in the context of the investigation into the State aid implemented by the Kingdom of the Netherlands in favour of Starbucks in Case SA.38374. More specifically, following the adoption of the decision to open an investigation into State aid, the Commission informally contacted the company concerned, which is a competitor of Starbucks, to ask whether it had any observations to make in regard to the role of the roasting processes in the value chain, with a view to assisting the Commission in its assessment of the State aid in Case SA.38374.

28 Consequently, those documents undoubtedly form part of the Commission’s administrative file within the meaning of the case-law cited in paragraph 23 above and constituted in the context of an ongoing procedure for the review of State aid, with the result that the Commission acted correctly in applying the general presumption of confidentiality referred to in that paragraph.

29 It is appropriate, in this regard, to point out that the documents covered by a general presumption of confidentiality fall outside the obligation to make full or partial disclosure, unless that presumption is reversed (order of 9 February 2017, Syndial v Commission,C-410/16 P, not published, EU:C:2017:112, paragraph 15).

30 Given that the applicant has not put forward any arguments capable of reversing that presumption and has not shown, or even alleged, that there is a higher public interest justifying disclosure of the documents at issue under the final section of Article 4(2) of Regulation No 1049/2001, it must be held that the Commission was fully entitled to refuse to grant the applicant full access to the documents at issue on the basis of the third indent of Article 4(2) of Regulation No 1049/2001.

31 In the light of the foregoing, the first plea in law must be rejected as being manifestly unfounded.

32 Since the ground set out in paragraph 30 above is sufficient to justify the contested decision in law, it is not necessary to examine the other pleas in the action.

33 It follows that the heads of claim seeking the annulment of the contested decision must be rejected as manifestly lacking any foundation in law.

35 Since this order is adopted before the defence has been lodged and the Commission has not made a claim regarding costs incurred in its observations on the measure of inquiry, it suffices to order the applicant to bear his own costs, in accordance with Article 133 of the Rules of Procedure.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Verschuur v Commission (Action for annulment - Access to documents - Netherlands to Starbucks : Order) [2017] EUECJ T-877/16_CO (18 May 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T87716_CO.html Cite as: ECLI:EU:T:2017:353, [2017] EUECJ T-877/16_CO, EU:T:2017:353

Court of Justice of the European Communities (including Court of First Instance Decisions)