Huhtamaki v Commission (Access to documents - State aid investigation - Advance tax agreements - Judgment) [2022] EUECJ T-134/20 (02 March 2022)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to a State aid investigation – Advance tax agreements – Refusal of access – Exception relating to the protection of the commercial interests of a third party – Exception relating to the protection of the purpose of inspections, investigations and audits – General presumption of confidentiality – Not irrebuttable – Obligation to state reasons)

Huhtamaki Sàrl, established at Senningerberg (Luxembourg), represented by M. Struys and F. Pili, lawyers,

European Commission, represented by K. Herrmann and A. Spina, acting as Agents,

APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2019) 9417 final of 18 December 2019 rejecting the confirmatory application for access to documents relating to a State aid investigation made by the applicant pursuant to 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),

composed of H. Kanninen, President, N. Półtorak and O. Porchia (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 12 July 2021,

1 In 2009, the applicant, Huhtamaki Sàrl, was engaged in refinancing activities, granting interest-bearing loans to the entities of the Huhtamäki group of which it is a part. Its activities were financed by an interest-free loan granted in 2009 by a sister company, based in Ireland, Huhtamäki Ireland Limited.

2 On 11 November 2009, the Luxembourg tax authorities granted the applicant an advance tax agreement (‘the ATA 2009’), confirming that it would be considered as making an acceptable profit margin on its refinancing activities, which complies with its transfer pricing policy as well as the provisions of Luxembourg income tax law.

3 In 2012 and 2013, two new advance tax agreements (respectively, ‘the ATA 2012’ and ‘the ATA 2013’) were granted by the Luxembourg tax authorities to the applicant.

4 In 2013, the European Commission opened an investigation into the Grand Duchy of Luxembourg’s practice of advance tax agreements (‘ATAs’), pursuant to Article 10 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) (now Article 12 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9)).

5 In the context of that investigation, and in particular of the State aid investigation procedures concerning ATAs granted to undertakings by the Luxembourg tax authorities (procedures SA.37267, ATA Luxembourg, and SA.41303, alleged aid in Luxleaks), the latter provided information concerning various recipients of ATAs on 22 December 2014 and 19 January 2018. As regards the applicant, those authorities provided the ATA 2009, the ATA 2012 and the ATA 2013.

6 In 2018, the Commission decided to carry out an examination of the information concerning the ATAs issued by the Luxembourg tax authorities in favour of the applicant and, by decision of 7 March 2019, it opened a formal State aid investigation procedure under Article 108(2) TFEU in case SA.50400, concerning those ATAs (‘the decision to open the formal investigation procedure’). On 10 June 2019, the applicant, in its capacity as an interested party, submitted comments pursuant to Article 108(2) TFEU.

7 The relevant procedures for the review of State aid relating to Luxembourg’s ATA practice are still ongoing.

8 On 3 October 2019, pursuant to 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), the applicant requested access to the non-confidential version of the document referred to in paragraph 4 of the decision to open the formal investigation procedure, containing the list of recipients of the ATAs communicated by the Grand Duchy of Luxembourg on 22 December 2014 (‘the list of recipients of the ATAs’), as well as the non-confidential version of the ATAs issued by the Luxembourg tax administration and to which the Commission referred in paragraphs 4 and 7 of that opening decision (together, ‘the documents requested’).

9 By letter of 24 October 2019, the Commission refused access to the documents requested, pursuant to Article 4(2) and (3) of Regulation No 1049/2001 (‘the initial refusal’).

10 In a confirmatory application submitted on 13 November 2019, pursuant to Article 7 of Regulation No 1049/2001, the applicant asked the Commission to reconsider its initial refusal (‘the confirmatory application’).

11 On 18 December 2019, the Commission adopted Decision C(2019) 9417 final, by which it rejected the confirmatory application (‘the contested decision’). The Commission stated that the documents requested fell under the general presumption of confidentiality based on the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001 and that, according to settled case-law, the interest which an applicant may have in obtaining access to documents in order to prepare his or her defence is not a public interest, so that it cannot be taken into account in the assessment of whether there is an overriding public interest.

12 By application lodged at the Court Registry on 27 February 2020, the applicant brought the present action.

13 By order of 16 July 2021, made pursuant to Article 91(1)(c) of the Rules of Procedure of the General Court, the latter ordered the Commission to produce, within a time limit to be fixed by the Registry, the documents to which it had refused to grant access in the contested decision. In that order, the Court specified that, in accordance with Article 104 of the Rules of Procedure, the documents to be produced by the Commission would not be disclosed to the applicant. On 27 July 2021, the Commission submitted documents to the Court in response to the measure of inquiry.

– order the Commission to grant it access to the non-confidential versions of the documents requested;

– reject as inadmissible the application that it be ordered to grant the applicant access to the non-confidential versions of the documents requested;

16 The Commission maintains that the second head of claim in the application, in which the applicant requests the Court to order the Commission to give it access to the non-confidential versions of the documents requested, is inadmissible. The Commission submits that, in the context of an action for annulment, the Court has no jurisdiction to issue orders to the institutions of the European Union.

17 At the hearing, in response to a question put by the Court, the applicant stated that it maintained the second head of claim, while deferring to the Court to rule on its admissibility.

18 It should be noted that the second head of claim in the application seeks an order from the Court that the Commission give the applicant access to the non-confidential versions of the documents requested. In that regard, it is sufficient to point out that, in the context of the review of legality based on Article 263 TFEU, the Court does not have jurisdiction to issue injunctions against the institutions, bodies, offices and agencies of the European Union (see, to that effect, order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited, and judgment of 25 September 2018, Sweden v Commission, T‑260/16, EU:T:2018:597, paragraph 104 and the case-law cited). It follows that the second head of claim in the application should be rejected on the ground of lack of jurisdiction.

19 In support of its action, the applicant relies on three pleas in law, the first, principally, alleging an error of law in that the general presumption of confidentiality is not applicable, the second, in the alternative, alleging an error of law in that that general presumption is rebutted because there is no risk of harm to the interests protected by the first and third indents of Article 4(2) of Regulation No 1049/2001, and, in any event, in that such an infringement is justified by an overriding public interest, and the third, also in the alternative, alleging infringement of the duty to state reasons and the right to sound administration.

20 The applicant claims that the Commission erred in law by relying on a general presumption of confidentiality applicable to the documents requested.

21 Firstly, it considers that, in the context of State aid investigations, Regulation No 1049/2001 allows interested parties to have access to documents ‘drawn up or transferred’ to the Commission. The case-law on Article 4(2) of that regulation and the general presumption of confidentiality do not apply in the present case, given the nature and scope of its request for access to documents.

22 The disclosure of the documents requested would not undermine either the objectives of the inspection and investigation activities or the commercial interests of third parties. The Commission has not shown that the circumstances of the present case are comparable to those of the cases which gave rise to the judgments of 28 June 2012, Commission v Editions Odile Jacob (C‑404/10 P, EU:C:2012:393), and of 14 July 2016, Sea Handling v Commission (C‑271/15 P, not published, EU:C:2016:557). The documents requested were drawn up by the Luxembourg authorities prior to opening the procedure for the review of State aid and, unlike a State aid complaint, they do not contain any assessment of facts or other information which would allow the direction of the Commission’s examination, the procedural steps which the Commission might adopt, and its examination strategy to be inferred. Moreover, in view of their nature, those documents relate solely to the Luxembourg authorities’ interpretation of certain provisions and the application of those provisions to the applicant.

23 As regards the investigations in cases SA.37267 and SA.41303, the Commission could not rely on them to justify retroactively the legality of the contested decision, unless it could be allowed to raise new arguments in the course of the present proceedings.

24 Secondly, the Commission should have demonstrated, on the basis of an initial examination, that there were strong and convincing reasons to assume that disclosure of the documents requested would undermine the proper conduct of the procedure for the review of State aid and/or the commercial interests of third parties. In particular, the Commission should have examined whether the function and relevance of the documents requested showed that there were strong and convincing reasons to believe that their disclosure would undermine the interests protected by the first and third indents of Article 4(2) of Regulation No 1049/2001.

25 The applicant adds that the general presumption of confidentiality must be interpreted and applied strictly, with the corollary that the Commission could not rely on it without examining whether its application is reasonable. The approach followed in the present case is contrary to the rationale of the system of exceptions provided for in Article 4 of Regulation No 1049/2001 and infringes the conditions set out in Article 52(1) of the Charter of Fundamental Rights of the European Union. The Commission does not demonstrate that the automatic and complete refusal to disclose the documents requested is compatible with the principle of proportionality.

27 It should be noted that Regulation No 1049/2001, the provisions of which are applicable in the present case, aims, as is clear from recital 4 and Article 1 thereof, to give the public the widest possible right of access to documents of the institutions. It is also apparent from that regulation, in particular from recital 11 and Article 4 thereof, which provides for a system of exceptions in that regard, that that right of access is nevertheless subject to certain limits based on reasons of public or private interest (judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 51; of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 61; and of 12 February 2019, Hércules Club de Fútbol v Commission, T‑134/17, not published, EU:T:2019:80, paragraph 32).

28 In order to justify refusal of access to a document for which disclosure has been requested, it is not sufficient, in principle, that the document fall within the scope of an activity mentioned in Article 4(2) of Regulation No 1049/2001. The institution concerned must also explain how access to that document could concretely and effectively undermine the interest protected by an exception provided for in that article (see judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 53 and the case-law cited; judgments of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 64, and of 12 February 2019, Hércules Club de Fútbol v Commission, T‑134/17, not published, EU:T:2019:80, paragraph 33).

29 However, it has already been recognised that it is open to the institution concerned to rely, in that regard, on general presumptions applying 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 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 54 and the case-law cited; judgments of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 65, and of 12 February 2019, Hércules Club de Fútbol v Commission, T‑134/17, not published, EU:T:2019:80, paragraph 34).

30 It should be noted that, as regards procedures for the review of State aid, the interested parties, with the exception of the Member State responsible for granting the aid, do not have the right to consult the documents in the Commission’s administrative file in the context of those procedures. That circumstance must be taken into account for the purposes of interpreting the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001. If those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to documents in the Commission’s administrative file, the system for monitoring State aid would be called into question (judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 58, and of 12 February 2019, Hércules Club de Fútbol v Commission, T‑134/17, not published, EU:T:2019:80, paragraph 35).

31 The right to consult the administrative file in the context of a review procedure opened in accordance with Article 108 TFEU and the right of access to documents, under Regulation No 1049/2001, are legally distinct, but they nevertheless lead to a comparable situation from a functional point of view. Regardless of the legal basis on which it is granted, access to the file enables interested parties to obtain all the observations and documents submitted to the Commission and, where appropriate, to adopt a position on those elements in their own observations, which is likely to change the nature of such a procedure (judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 59, and of 12 February 2019, Hércules Club de Fútbol v Commission, T‑134/17, not published, EU:T:2019:80, paragraph 36).

32 It has already been held that it is necessary to recognise the existence of a general presumption that disclosure of documents from the Commission’s administrative file in procedures for the review of State aid would, in principle, undermine the protection of the objectives of the investigation activities (judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 61; of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraph 37; and of 12 February 2019, Hércules Club de Fútbol v Commission, T‑134/17, not published, EU:T:2019:80, paragraph 38).

33 In the present case, it is common ground that the documents requested were communicated by the Luxembourg authorities to the Commission in the context of procedures for the review of State aid and that they are referred to in the decision to open the formal investigation procedure, which relates to the ATAs from which the applicant benefited. According to the applicant’s request, the documents in question are those referred to in paragraphs 4 and 7 of that decision, which were communicated to the Commission by the Luxembourg authorities on 22 December 2014 and 19 January 2018.

34 The Commission was therefore right to rely on the case-law according to which a general presumption of confidentiality applies to documents forming part of the administrative file of a procedure for the review of State aid in order to refuse access to the documents requested, with regard to the undermining of the protection of the objectives of inspection, investigation and audit activities referred to in the third indent of Article 4(2) of Regulation No 1049/2001.

35 The arguments put forward by the applicant in the context of the first plea in law do not allow that conclusion to be overturned.

36 In the first place, as regards the fact that the application seeks the disclosure of specific and easily identifiable documents, it should be noted that, according to the case-law, if the documents requested form part of the Commission’s administrative file relating to a procedure for reviewing State aid, that fact that they form part of the administrative file is sufficient to confer on them the benefit of the general presumption set out in paragraph 32 above (judgment of 7 September 2017, AlzChem v Commission, T‑451/15, not published, EU:T:2017:588, paragraph 60). The Court has clarified that that presumption applies irrespective of whether the request for access has specifically identified the document or documents concerned (see judgment of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraph 51 and the case-law cited; judgment of 13 March 2019, AlzChem v Commission, C‑666/17 P, not published, EU:C:2019:196, paragraph 31). That general presumption of confidentiality is not intended to apply only where the request for access relates to the entire file (judgment of 12 February 2019, Hércules Club de Fútbol v Commission, T‑134/17, not published, EU:T:2019:80, paragraph 45).

37 In the second place, as regards the argument that the documents requested were drawn up by the Luxembourg authorities before the procedure for reviewing State aid relating to the ATAs concerning the applicant was opened, it should be noted that it follows from the very nature of a State aid investigation that information on what may have happened prior to the opening of the investigation should be collected and it is not apparent from the case-law that such documents should be distinguished from the rest of the Commission’s administrative file (judgment of 13 March 2019, AlzChem v Commission, C‑666/17 P, not published, EU:C:2019:196, paragraph 33).

38 The pre-existing nature of the documents requested does not therefore preclude them from being covered by the general presumption of confidentiality, where they form part of the Commission’s administrative file in a State aid investigation procedure (see, to that effect, judgment of 13 March 2019, AlzChem v Commission, C‑666/17 P, not published, EU:C:2019:196, paragraph 34).

39 It should be added that, in so far as the replies of the Luxembourg authorities were collected by the Commission in the course of the investigation it carried out and it is not disputed that those replies contributed to the adoption of the decision to open the formal investigation procedure, the documents requested form part of the Commission’s administrative file relating to the procedure for reviewing the State aid in question (see, by analogy, judgment of 19 September 2018, Chambre de commerce et d’industrie métropolitaine Bretagne-Ouest (port de Brest) v Commission, T‑39/17, not published, EU:T:2018:560, paragraph 86).

40 In the third place, as regards the argument that the Commission should have demonstrated, on the basis of an initial examination, that there were reasons to presume that disclosure of the documents requested would undermine the proper conduct of the procedure for reviewing State aid and/or the commercial interests of third parties, it should be noted that the requirement to base the use of a general presumption on solid and convincing reasons, as it follows from the case-law (see, to that effect, judgment of 25 September 2014, Spirlea v Commission, T‑306/12, EU:T:2014:816, paragraph 52), does not mean that the Commission had to examine all the documents requested individually. Such a requirement would deprive that general presumption of its useful effect (see judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 101 and the case-law cited).

41 Furthermore, and in any event, according to the case-law referred to in paragraph 36 above, the fact that the documents requested belong to the administrative file is sufficient to confer on them the benefit of the general presumption set out in paragraph 32 above.

42 In the fourth place, as regards the argument that the Commission could not confine itself to invoking that general presumption of confidentiality with a standardised statement of reasons, without examining the reasonableness of the application of that presumption, without violating the raison d’être of the system of exceptions laid down in Article 4 of Regulation No 1049/2001, and the requirements of the principle of proportionality, it must be held that, for the purposes of applying the general presumption of confidentiality, a prima facie examination of the documents concerned cannot oblige the Commission to carry out a concrete and individual examination of those documents (see, by analogy, judgment of 26 March 2020, Bonnafous v Commission, T‑646/18 EU:T:2020:120, paragraph 95), nor to ascertain whether there are other valid reasons for not disclosing any part of them (see, by analogy, judgment of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraph 63).

43 It should be noted that the documents requested, in so far as they are covered by the general presumption of confidentiality referred to in paragraph 32 above, escape a priori the obligation to disclose their content, in full or in part. Consequently, the contested decision cannot be regarded as having been taken in breach of the fundamental right of access to documents and the principle of proportionality (see, to that effect and by analogy, judgment of 5 February 2018, Edeka-Handelsgesellschaft Hessenring v Commission, T‑611/15, EU:T:2018:63, paragraphs 110 and 111).

44 Finally, the applicant acknowledged at the hearing that the documents requested were relevant for the purposes of the procedure for the review of State aid in Case SA.50400. Moreover, the fact that it was already in possession of the ATA 2012 and the ATA 2013 cannot suffice to show that the Commission misapplied the general presumption of confidentiality.

45 It follows from the foregoing that the first plea in law must be rejected as unfounded.

46 By its second and third pleas in law, which must be examined together, the applicant claims in essence that, by rejecting its arguments to show that the general presumption of confidentiality can be rebutted in respect of the documents requested, the Commission not only failed to state adequate reasons for the contested decision, but also erred in law.

47 As regards the failure to state reasons, the applicant considers, in particular, that the Commission provided a brief and vague, standardised statement of reasons to rebut the arguments put forward by it for access to the documents requested, which include not only the list of recipients of the ATAs, but also all the ATAs, including the ATA 2012 and the ATA 2013, referred to in paragraph 7 of the decision to open the formal investigation procedure and which were communicated by the Luxembourg authorities on 19 January 2018. The applicant is unable to understand why, in the absence of any risk of harm to the interests protected by the first and third indents of Article 4(2) of Regulation No 1049/2001, the general presumption of confidentiality cannot be rebutted. Nor does the Commission explain what harm would be caused to the commercial interests of third parties by access to the non-confidential version of the documents requested.

48 As regards the rebuttal of the general presumption of confidentiality, the applicant relies, in the first place, on the absence of any risk of harm to the interests protected by the first and third indents of Article 4(2) of Regulation No 1049/2001.

49 First, and in particular, access to the documents requested should not affect the objectives of the inspection, investigation and audit activities, since those documents do not contain any preliminary assessment of the facts or other information which would make it possible to presume the direction of the Commission’s examination, the procedural steps which that institution might adopt and its examination strategy. The applicant adds that the disclosure of the ATAs concerning it clearly cannot undermine the objective of the investigation.

50 The applicant states that the argument that the Luxembourg authorities classified the documents requested as strictly confidential was never put forward in the administrative procedure and that it cannot be relied on before the Court to justify a posteriori the legality of the contested decision. Nor could the Commission rely for the first time before the Court on the argument that access to the list of recipients of the ATAs would give an insight into the practice of the Grand Duchy of Luxembourg in relation to ATAs.

51 Second, the applicant submits that access to the documents requested should not affect the commercial interests of third parties. The applicant requested access to the list of recipients of the ATAs and to the ATAs themselves referred to in paragraphs 4 and 7 of the decision to open the formal investigation procedure, which are either abstract documents or information whose sensitive elements could easily be concealed. That list is a simple list of companies, giving no information on the taxable profit and turnover of the companies concerned, nor any other commercially sensitive information. Moreover, the name of legal persons is generally not protected. As for the ATAs, assuming that they contain information on the tax structures and activities of the recipient companies, the Commission could conceal the commercially sensitive data they contain. Any alleged concerns about the names of the companies and the date and purpose of the ATAs could be addressed by blacking out such data from the documents requested, so that access to a redacted version of the list of recipients of the ATAs would have protected the alleged business interests of those companies. As for the tax structures of those recipients, they could not be confidential without reference to the names of the companies concerned.

52 In the second place, and in any event, the applicant claims that the general presumption of confidentiality is rebutted for compelling reasons of public interest justifying the disclosure of the documents requested.

53 In reply, the Commission submits that, as regards the statement of reasons for the contested decision, it has set out the factual and legal elements and all the considerations which led it to adopt that decision. It adds that the arguments put forward by it at the stage of the defence to explain the role of the documents requested in the context of the procedures for the review of State aid currently under way are not new arguments intended to fill in the gaps in the contested decision, but seek to refute the allegations made in the application. Nor is there a lack of reasoning as regards the refusal of partial access to those documents.

54 As regards the rebuttal of the general presumption of confidentiality, the Commission considers, in the first place, that the applicant has not sufficiently demonstrated that disclosure of the documents requested would not adversely affect the interests protected by the first and third indents of Article 4(2) of Regulation No 1049/2001 and that those documents are therefore not covered by the general presumption of confidentiality based on those provisions. The first document requested, which was provided by the Luxembourg authorities, consists of a list of recipients of the ATAs issued for the years 2010 to 2012, including the name of each company concerned and the date and purpose of the ATA. Those authorities described that document as strictly confidential and also stated that its disclosure would violate the tax confidentiality of individual undertakings.

55 The Commission points out that, if it referred, in its defence, to the fact that the Luxembourg authorities had requested confidential treatment of the documents requested, it was in order to refute the applicant’s claim that the disclosure of those documents would not undermine the interest protected by the third indent of Article 4(2) of Regulation No 1049/2001.

56 In the second place, the Commission submits that, while the applicant may have a personal interest in obtaining access to the documents requested, that cannot constitute an overriding public interest within the meaning of Regulation No 1049/2001.

57 In the present case, the applicant put forward already at the pre-litigation stage arguments to show that the general presumption of confidentiality should be rebutted in relation to the documents requested, arguing, inter alia, first, that disclosure of the documents requested would not jeopardise either the objective of the procedure for reviewing State aid or the Commission’s decision-making process, secondly, that the decision to refuse all access to the documents requested was disproportionate to the attainment of the objectives pursued by Regulation No 1049/2001 and, thirdly, that it was possible to draw up a non-confidential version of those documents in order to protect the sensitive information of third-party undertakings and the interests of the investigation. In considering the second and third pleas in law, which relate to the rebuttal of the general presumption of confidentiality, it is therefore necessary to assess whether the statement of reasons for the contested decision was sufficient in that regard and, if so, whether the Commission was right to reject the arguments put forward by the applicant.

58 In that context, it should be noted that, in the field of State aid, the Court has held that the general presumption of confidentiality in no way precludes the right of the applicant to show that one or more particular documents, of which it requests disclosure, are not covered by that presumption or that there is an overriding public interest justifying their disclosure under Article 4(2) of Regulation No 1049/2001 (see judgment of 13 March 2019, AlzChem v Commission, C‑666/17 P, not published, EU:C:2019:196, paragraph 37 and the case-law cited).

59 Therefore, the general presumption that disclosure of documents in the administrative file would, in principle, undermine the protection of the objectives of investigative activities is not irrebuttable and does not preclude the disclosure of some of the specific documents contained in the Commission’s file relating to a procedure for the review of State aid (see judgment of 13 March 2019, AlzChem v Commission, C‑666/17 P, not published, EU:C:2019:196, paragraph 38 and the case-law cited; judgment of 28 May 2020, Campbell v Commission, T‑701/18, EU:T:2020:224, paragraph 43).

60 In that regard, it is for the party seeking disclosure of a document to adduce evidence capable of establishing either that the general presumption of confidentiality of documents relating to procedures for the review of State aid does not cover that document or that there is an overriding public interest justifying such disclosure (see judgment of 11 December 2018, Arca Capital Bohemia v Commission, T‑440/17, EU:T:2018:898, paragraph 61 and the case-law cited).

61 In the absence, in a confirmatory application for access to certain documents, of arguments relating specifically to the fact that the documents at issue are not covered by the general presumption of confidentiality, the Commission is not required to carry out an individual and concrete examination of them and may apply the general presumption of confidentiality to them (see, to that effect, judgment of 11 December 2018, Arca Capital Bohemia v Commission, T‑440/17 EU:T:2018:898, paragraph 62 and the case-law cited).

62 By contrast, since the applicant raises arguments in its confirmatory application for access concerning the fact that the documents in question are not covered by the general presumption of confidentiality, the Commission must, first, examine those documents and, second, give reasons for rejecting those arguments.

63 It should be added that, according to settled case-law, the reasons for the decision must in principle be communicated to the person concerned at the same time as the measure adversely affecting him or her, and its absence cannot be remedied by the fact that the person concerned learns of the reasons for the measure in the course of the proceedings before the Courts of the European Union (judgments of 26 November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22; of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 463; and of 26 April 2016, Strack v Commission, T‑221/08, EU:T:2016:242, paragraph 101 (not published)).

64 Otherwise, there is a risk that the obligation to state reasons will not achieve its purpose, which, according to settled case-law, is to provide the person concerned with sufficient information to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested and to enable the Courts of the European Union to review the legality of the decision (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 462 and the case-law cited; see, also, judgment of 26 April 2016, Strack v Commission, T‑221/08, EU:T:2016:242, paragraph 102).

65 It should be noted that in the contested decision, in point 2.1 thereof, which deals with the protection of the objectives of investigative activities and commercial interests, the Commission set out the reasons which, in its view, justified the non-disclosure of the documents requested. It referred in that respect to the case-law on the application of the general presumption of confidentiality in the case of procedures for the review of State aid (see pages 2 to 4 of the contested decision) and in the case of procedures for the review of mergers, which it considered could be applied by analogy to procedures for the review of State aid. It concluded, in the last paragraph of page 5 of the contested decision, that the documents requested are covered, in their entirety, by the general presumption of non-disclosure based on the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001 and that the application of that presumption implied that it was not obliged to examine specifically and individually the documents requested.

66 Furthermore, in the second paragraph of point 3 of the contested decision, the Commission stated that the Court had confirmed that the general presumption of confidentiality precluded the possibility of granting partial access to the file and, in the third paragraph of that point, that the documents requested fell clearly and entirely within the scope of the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001.

67 As regards the possible existence of an overriding public interest which would allow access to the documents requested, the Commission emphasised principally, in paragraph 4 of the contested decision, that the protection of the applicant’s rights of defence, in the context of the SA.50400 procedure, could not be confused with an overriding public interest and that such rights could be exercised in the context of the procedure for the review of State aid, whereby the applicant could have access, when a final decision was adopted in that regard, to the non-confidential version of that decision, including information relating to the documents requested, provided that those documents were relevant to that decision.

68 In the first place, it should be pointed out that, while it is common ground that the list of recipients of the ATAs is among the documents requested, it emerged from the hearing that there is disagreement between the parties as to the identification of the other documents requested. In response to a question from the Court, the Commission stated that it had refused the request for access to those other documents, considering that they related only to the ATA 2012 and the ATA 2013.

69 However, first, in the initial refusal of access, the Commission had expressly referred to third undertakings, which could mean that that refusal was not limited to the ATAs concerning the applicant. Second, in the contested decision, in referring to the documents requested, the Commission repeated the terms used by the applicant in the application for access of 3 October 2019 and in the confirmatory application. In addition and above all, it should be noted that in that decision it is not expressly stated that access is refused to the list of recipients of the ATAs and to the ATA 2012 and the ATA 2013.

70 Therefore, on reading the contested decision, which, moreover, refers to documents containing details of the tax structures and activities of the recipient undertakings, without specifying which undertakings are concerned, the applicant cannot understand, and the Court cannot review, whether that decision refers only to the ATA 2012 and the ATA 2013, in addition to the list of recipients of the ATAs, which concern the applicant itself.

71 In that context, the contested decision fails to state adequate reasons as regards the identification of the documents requested and, consequently, also as regards the refusal of access to those documents in the context of the rebuttal of the general presumption of confidentiality.

72 In the second place, it should be pointed out that the applicant requested access to two categories of documents, namely, first, the list of recipients of the ATAs and, second, the ATAs as such. As the Commission has explained in the course of the present proceedings, the list of recipients of the ATAs contains three types of information, namely, the names of the undertakings to which the Luxembourg tax authorities have granted ATAs, and the date and purpose of those ATAs. As regards the ATAs themselves, however, they contain much more information, as the Commission also indicated in the contested decision, since they can give details of the tax structures and activities of the undertakings receiving the ATAs.

73 The contested decision does not distinguish between those two categories of documents. It contains a single statement of reasons for refusing access, even though those documents have neither the same content nor the same nature.

74 In the third place, it should be recalled that the applicant sought only access to the non-confidential version of the documents requested. As regards the list of recipients of the ATAs, it even argued that the three types of information contained therein could have been easily concealed.

75 The contested decision did not explain why it was not possible to provide the applicant with a non-confidential version of those various categories of documents, including documents relating to the applicant. In that regard, while the applicant is in principle already in possession of the confidential version of the ATA 2012 and the ATA 2013, since it is the recipient, the Commission merely stated that the Court confirmed that the general presumption of confidentiality precluded the possibility of granting partial access to the file and referred to the grounds that access would undermine the interests of the investigation and the protection of the commercial interests of the recipient undertakings.

76 In the fourth place, it is important to add that the Commission, in the context of its submissions, clarified that the Luxembourg authorities had qualified the list of recipients of the ATAs as strictly confidential, but also that the disclosure of that list would give an overview of the practice of ATAs in Luxembourg as well as an overview of the practice of the treatment of interest-free loans, which is the subject of the ongoing State aid investigation. The Commission also referred to the fact that the assessment of other ATAs on the ATA list for the period 2010 to 2012 is part of its investigation strategy in the ongoing proceedings in cases SA.37267 and SA.41303. It also gave as its reason for refusing access by claiming, at the hearing, that it did not have the non-confidential version of the documents requested.

77 Those grounds were not invoked in the contested decision, nor can they be deduced from those contained in that decision.

78 In those circumstances, the grounds of the contested decision do not enable the applicant to understand the reasons which led the Commission to reject the arguments which it had put forward to rebut the general presumption of confidentiality in order to obtain partial access to the documents requested, without distinguishing between the various categories of documents or taking account of the documents which concern the applicant, nor do they enable the Court to carry out its review of the lawfulness in that regard.

79 It follows from the foregoing that the plea in law alleging breach of the obligation to state reasons must be upheld. The contested decision should therefore be annulled, without it being necessary to examine the other arguments put forward in the context of the applicant’s second plea in law.

80 Pursuant to Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.

81 In the present case, since the action is in essence upheld, a fair assessment of the case will be made in deciding that the Commission shall bear its own costs and those incurred by the applicant.

1. Annuls Commission Decision C(2019) 9417 final of 18 December 2019 rejecting the confirmatory application for access to documents relating to a State aid investigation made by Huhtamaki Sàrl pursuant to 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;

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Huhtamaki v Commission (Access to documents - State aid investigation - Advance tax agreements - Judgment) [2022] EUECJ T-134/20 (02 March 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T13420.html Cite as: ECLI:EU:T:2022:100, EU:T:2022:100, [2022] EUECJ T-134/20

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