Muka v Commission (Access to documents - Documents relating to State aid control procedures - Judgment) [2022] EUECJ T-214/21 (05 October 2022)

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(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to State aid control procedures – Refusal to grant access – Third indent of Article 4(2) of Regulation No 1049/2001 – Exception relating to the protection of the purpose of inspections, investigations and audits – General presumption of non-disclosure – Overriding public interest)

Ondřej Múka, residing in Prague (Czech Republic), represented by P. Kočí, lawyer,

European Commission, represented by C. Ehrbar and K. Herrmann, acting as Agents,

composed, at the time of the deliberations, of A. Kornezov, President, G. Hesse (Rapporteur) and D. Petrlík, Judges,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By his action under Article 263 TFEU, the applicant, Mr Ondřej Múka, asks the General Court, first, to annul (i) the letter of the European Commission of 27 October 2020 rejecting his initial application of 17 September 2020 requesting access to documents which it had exchanged with the Czech Republic and (ii) Decision C(2021) 1320 final of 21 February 2021 rejecting his confirmatory application of 12 November 2020 requesting access to those documents, and, second, to order the Commission to provide him with all the documents and information referred to in his application of 17 September 2020.

2 On 17 September 2020 the applicant applied to the Commission (‘the initial application’), requesting that it provide him, 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), with information and documents exchanged between the Commission and the Czech authorities regarding, first, the support provided for electricity production from renewable energy sources in the Czech Republic or the values of the internal rate of return on investments with respect to photovoltaic power plants commissioned in the Czech Republic in the period from 1 January 2006 to 31 December 2015 and, second, the procedures conducted by the Commission under Article 108 TFEU concerning the application of State aid rules in Cases SA.35177 and SA.40171, which were closed by Commission Decision C(2014) 2246 final of 11 June 2014 regarding State aid SA.35177 (2014/NN) – Czech Republic – Promotion of electricity production from renewable energy sources and by Commission Decision C(2016) 7827 final of 28 November 2016 regarding State aid SA.40171 (2015/NN) – Czech Republic – Promotion of electricity production from renewable energy sources, respectively (together, ‘the requested documents’).

3 By letter of 27 October 2020, file No COMP/B2/JP *Gestdem 2020/5901 (‘the reply to the initial application’), the Commission rejected the initial application on the ground that the requested documents fell 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 the purpose of investigations, and that provided for in Article 4(3) of that regulation, relating to the protection of the decision-making process, and that the applicant had not put forward arguments to demonstrate the existence of an overriding interest in disclosure of the requested documents.

4 On 12 November 2020, the applicant applied to the Commission, in accordance with Article 7(2) of the aforementioned regulation, requesting it to reconsider its position and to provide him with the requested documents (‘the confirmatory application’).

5 By Decision C(2021) 1320 final of 21 February 2021 (‘the decision refusing access’), the Commission rejected the confirmatory application on the basis of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001.

6 In that decision, the Commission found that the requested documents were part of the files of two administrative procedures conducted by it concerning State aid, namely the investigations in Cases SA.35177 and SA.40171. The Commission also observed that some of the exchanges between it and the Czech authorities referred to in the confirmatory application related to the pending case SA.55860, which was connected with Case SA.35177, since it concerned the extension of the same aid scheme. It then noted that there was a general presumption that the disclosure of documents resulting from a State aid investigation would undermine the protection of the purpose of investigations for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001, even after the closure of such an investigation. Furthermore, the Commission found that the applicant had failed to demonstrate an overriding public interest capable of warranting disclosure of the requested documents; it also stated that it had failed to identify such an interest. Lastly, it claimed that the general presumption of non-disclosure of the requested documents meant that it was not obliged to disclose them in part.

– annul the reply to the initial application and the decision refusing access;

– order the Commission to provide the applicant with the information and documents referred to in the initial application;

9 Without formally raising an objection of inadmissibility, the Commission puts forward a plea of inadmissibility in respect of some of the applicant’s heads of claim. First, it argues that the claim for annulment of the reply to the initial application, contained in the applicant’s first head of claim, is inadmissible, since that reply does not constitute a challengeable act for the purposes of Article 263 TFEU, as it is not capable of producing legal effects such as to affect the interests of the applicant. Secondly, the Commission contends that the second head of claim is inadmissible, since the General Court is not entitled to issue directions to the EU institutions.

11 By his first head of claim, the applicant seeks the annulment of the reply to the initial application and of the decision refusing access.

12 In that regard, it should be noted that, according to settled case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his or her legal position may be the subject of an action for annulment (see judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51 and the case-law cited).

13 It is also apparent from settled case-law concerning the admissibility of actions for annulment that it is necessary to look to the substance of the contested acts, as well as the intention of those who drafted them, to classify those acts. In that regard, it is in principle those measures which definitively determine the position of the Commission upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicant, which are open to challenge and not intermediate measures whose purpose is to prepare for the definitive decision, which do not produce such effects (see judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52 and the case-law cited).

14 As regards Regulation No 1049/2001, it should be recalled that Articles 7 and 8 of that regulation provide for a two-stage procedure. The reply to an initial application for access to documents, under Article 7(1) of Regulation No 1049/2001, is merely an initial statement of position, conferring on the person applying for access the right to request the Commission to reconsider the position in question, pursuant to Article 7(2) of that regulation. Accordingly, only the measure adopted by the Commission under Article 8(1) of that regulation in reply to a confirmatory application, which replaces the initial statement of position, has the nature of a decision and is capable of producing legal effects such as to affect the interests of the person applying for access and, in consequence, capable of being the subject of an action for annulment under Article 263 TFEU (order of 15 February 2012, Internationaler Hilfsfonds v Commission, C‑208/11 P, not published, EU:C:2012:76, paragraphs 29 and 30, and judgment of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraphs 34 to 36).

15 It follows that the reply to an initial application referred to in Article 7(1) of Regulation No 1049/2001 is, in principle, not open to challenge, since it does not produce legal effects, in the absence of exceptional circumstances (see, to that effect, judgments of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 36, and of 9 September 2009, Brink’s Security Luxembourg v Commission, T‑437/05, EU:T:2009:318, paragraphs 74 and 75).

16 In the present case, it is common ground that the reply to the initial application did not contain the Commission’s final position, since the applicant was informed in that reply of his right to make a confirmatory application seeking a review of the Commission’s position, which he in fact did (see paragraph 4 above).

17 The first head of claim must therefore be rejected as inadmissible in so far as it is directed against the reply to the initial application. The action nevertheless remains admissible in so far as the first head of claim seeks the annulment of the decision refusing access, which, unlike the reply to the initial application, produces binding legal effects for the reasons set out in paragraph 14 above.

18 By his second head of claim, the applicant asks the Court to order the Commission to provide him with the requested documents. It is therefore a direction addressed to the Commission.

19 According to settled case-law, the Courts of the European Union cannot, in principle, issue orders to an EU institution without encroaching upon the prerogatives of the administration (see judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 145 and the case-law cited). Under Article 266 TFEU, the institution whose act has been declared void, following an action on the basis of Article 263 TFEU, as in the present case, is in all cases required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union.

21 As a preliminary point, it is necessary to examine the Commission’s reasoning that the line of argument put forward by the applicant in the application is ineffective. According to the Commission, the applicant failed to indicate with sufficient clarity which specific legal provisions were infringed in the decision refusing access and, in particular, did not raise a plea alleging misapplication of the third indent of Article 4(2) of Regulation No 1049/2001, on which the contested decision is based. The Commission also refers in its arguments in that regard to the condition laid down in Article 76(d) of the Rules of Procedure of the General Court that every application must contain the pleas in law and arguments relied on.

22 In that regard, it should be noted that, according to the case-law, an applicant is not obliged expressly to state the particular rule of law on which his or her complaint is based, provided that his or her line of argument is sufficiently clear for the defendant and the Courts of the European Union to be able to identify the rule without difficulty (judgment of 8 November 2012, Hartmann v OHIM (Nutriskin Protection Complex), T‑415/11, not published, EU:T:2012:589, paragraph 11).

23 In the application, the applicant, in Section III, entitled ‘Applicant’s reasoning’, puts forward seven arguments, divided into Sections ‘A’ to ‘G’. It is apparent, in essence, from those arguments that the applicant alleges (i) misapplication by the Commission of the exception provided for in Article 4(3) of Regulation No 1049/2001, (ii) misapplication of the exception provided for in the third indent of Article 4(2) of that regulation, (iii) misapplication of the last clause of Article 4(2) of that regulation, inasmuch as the Commission concluded in the decision refusing access that there was no overriding public interest in disclosure of the requested documents, and (iv) lack of compliance with the obligation provided for in Article 4(6) of that regulation, inasmuch as the Commission did not attempt to grant partial access to the requested documents. By those arguments, the applicant has identified with sufficient clarity the provisions of law allegedly infringed by the decision refusing access.

24 In addition, it must also be noted that the Commission had no difficulty in understanding that line of argument and identifying the provisions of Regulation No 1049/2001 referred to by the applicant. It put forward substantiated arguments in the defence addressing each of the arguments put forward by the applicant and referring to the provisions of that regulation listed in paragraph 23 above.

25 Accordingly, the Commission’s arguments disputing the effectiveness of the applicant’s line of argument must be rejected.

26 Consequently, the Commission’s reference to the condition laid down in Article 76(d) of the Rules of Procedure that every application must contain the pleas in law and arguments relied on is irrelevant. It is apparent from the summary of the applicant’s arguments in paragraph 23 above that those arguments can easily be classified as pleas in law.

The first plea in law, alleging that the Commission misapplied the exception provided for in Article 4(3) of Regulation No 1049/2001

27 The applicant maintains that the Commission misapplied the exception provided for in Article 4(3) of Regulation No 1049/2001, in particular because the investigations in Cases SA.35177 and SA.40171 were closed and their possible reopening was merely speculative.

29 In that regard, it should be borne in mind that Article 4(3) of Regulation No 1049/2001 allows an EU institution to which that regulation applies, such as the Commission, to refuse access to a document where its disclosure ‘would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure’.

30 In the present case, it is clear that the Commission did not base the decision refusing access on Article 4(3) of Regulation No 1049/2001. The Commission’s reasoning justifying the refusal to grant access to the requested documents, set out in points 2 and 3 of that decision, is based solely on the third indent of Article 4(2) of Regulation No 1049/2001.

31 Even though the Commission relied on, in particular, Article 4(3) of Regulation No 1049/2001 in its reply to the initial application, it should be borne in mind that that reply is not a challengeable act for the reasons set out in paragraphs 12 to 17 above and that its legality cannot therefore be challenged.

32 Accordingly, the applicant’s line of argument regarding the infringement of Article 4(3) of Regulation No 1049/2001 is ineffective and the first plea in law must therefore be rejected as unfounded.

The second plea in law, alleging that the Commission misapplied the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001

33 In point 2 of the decision refusing access, first of all, the Commission explained that the requested documents concerned the requests for information sent by the Commission and the information and documents provided by the Czech authorities during the investigations in Cases SA.35177 and SA.40171. The Commission also observed that some of the exchanges between it and the Czech authorities referred to in the confirmatory application related to the pending case SA.55860, which was connected with Case SA.35177, since it concerned the extension of the same aid scheme. In addition, it observed that the decision relating to Case SA.40171 was still, at the time of the adoption of the decision refusing access, subject to judicial proceedings, being under appeal before the Court of Justice (Case C‑850/19 P, FVE Holýšov I and Others v Commission) following the judgment of 20 September 2019, FVE Holýšov I and Others v Commission (T‑217/17, not published, EU:T:2019:633).

34 Next, the Commission found that there was a general presumption that the disclosure of documents resulting from an investigation relating to State aid control would undermine the protection of the purpose of investigations for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001, even after the definitive closure of such an investigation. In that regard, it recalled, in particular, the rules established by Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9) limiting interested parties’ access to documents in the Commission file opened in a State aid control procedure, as well as the importance of maintaining a climate of trust between the Commission and the Member States; something which would be jeopardised by the disclosure of such documents.

35 In addition, in response to the applicant’s argument raised in the confirmatory application that the investigations in question were closed, the Commission observed, while repeating that the general presumption of non-disclosure applied even after the definitive closure of an investigation concerning State aid, that the decision regarding Case SA.40171 was still the subject of judicial proceedings and that the investigation relating to that case could be reopened following those proceedings. Furthermore, it noted that the disclosure of documents resulting from the investigation in Case SA.35177 could jeopardise the pending investigation in Case SA.55860 which succeeded it.

36 The Commission therefore considered that the requested documents had to be protected from disclosure under the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001.

37 The applicant claims, in essence, that, in the decision refusing access, the Commission misapplied the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001. He maintains, in that regard, first, that his application was not seeking to obtain information regarding the Commission’s investigations, secondly, that Regulation 2015/1589 did not in any way justify the refusal to grant access to the requested documents, thirdly, that such use of the exception provided for by that provision of Regulation No 1049/2001 is at odds with the purpose of that regulation and, fourthly, that the Commission nevertheless was obliged to carry out a concrete and individual examination of the requested documents.

39 It should be borne in mind that Regulation No 1049/2001 seeks, as 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, particularly recital 11 and Article 4 thereof, the latter of 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.

40 Accordingly, Article 4(2) of Regulation No 1049/2001 provides that the institutions to which that regulation applies are to refuse access to a document where disclosure would undermine the protection of certain public or private interests, unless there is an overriding public interest in disclosure. One of the interests referred to in that provision, set out in the third indent thereof, concerns the protection of ‘the purpose of inspections, investigations and audits’.

41 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 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).

42 However, the Court has acknowledged that it is open to the EU 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 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 54 and the case-law cited).

43 The objective of such presumptions is thus the possibility, for the EU institution concerned, to consider that the disclosure of certain categories of documents undermines, in principle, the interest protected by the exception which it is invoking, by relying on such general considerations, without being required to examine specifically and individually each of the documents requested (judgments of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 52, and of 29 September 2021, Alzchem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 41).

44 According to settled case-law, as interested parties other than the Member State concerned in State aid control procedures do not have the right to consult the documents in the Commission’s administrative file, there is a general presumption that disclosure of documents in the administrative file undermines, in principle, the protection of the purpose of investigation activities (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 61).

45 In the present case, it follows from the case-law principles referred to above that, given that it is not disputed that the requested documents formed part of the administrative files resulting from State aid control procedures, the Commission was entitled to consider in the decision refusing access that there was a general presumption that disclosure of the requested documents would, in principle, undermine the protection of the purpose of investigations covered by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001. Accordingly, it was correct to apply the exception provided for in that provision.

46 The applicant’s arguments are not such as to call that finding into question.

47 In the first place, as regards the applicant’s argument that his application was not seeking to obtain information regarding the Commission’s investigation strategies, since it was based only on his interest in the legislative procedure that was ongoing in the Czech Republic concerning the amendment of the law governing energy sources, that argument clearly does not remove the risk that the nature of the State aid control procedure could be jeopardised by access to documents under 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, paragraphs 58 and 59, and of 11 December 2018, Arca Capital Bohemia v Commission, T‑440/17, EU:T:2018:898, paragraphs 44 and 45 and the case-law cited). That argument cannot therefore call into question the applicability of the general presumption of non-disclosure.

48 In the second place, as regards the applicant’s argument that the Commission could not base its refusal on the provisions of Regulation 2015/1589, it must be noted that it is precisely because of the procedural rules applicable to State aid investigations, first of all established by Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 [TFEU] (OJ 1999 L 83, p. 1) and now contained in Regulation 2015/1589, that the Courts of the European Union considered that the documents resulting from such an investigation had to be covered by a general presumption of protection under the third indent 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, paragraphs 55 to 58). Regulation 2015/1589 does not grant third parties any right of access to documents which the Commission gathers pursuant to a State aid control procedure.

49 It follows in particular from the foregoing that, contrary to the applicant’s arguments, the fact that Regulation 2015/1589 promotes transparency of State aid control and provides for the publication of decisions adopted by the Commission concerning State aid in no way means that the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 cannot be applied in the present case.

50 In the third place, as regards the applicant’s argument that the application, in the decision refusing access, of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 is at odds with the very purpose of that regulation, which is to grant the public the widest possible access to documents, it must be held, on the contrary, that that decision applies one of the exceptions to the right of access expressly provided for in Article 4 of that regulation. Under the third indent of Article 4(2) of Regulation No 1049/2001, unless there is an overriding public interest in disclosure, access is to be refused to documents the disclosure of which would undermine the purpose of inspections, investigations and audits of the Commission. That applies to the requested documents for the reasons set out above.

51 In the fourth place, as regards the applicant’s argument that the Commission failed to carry out a concrete and individual examination of the requested documents, since it did not explain in the decision refusing access how disclosure of each of the requested documents could specifically and actually undermine the interest protected by the third indent of Article 4(2) of Regulation No 1049/2001, it should be borne in mind that, according to the case-law cited in paragraph 43 above, where a general presumption of non-disclosure applies to a category of documents of the same nature, the Commission is entitled to presume, without carrying out a specific, individual examination of each of the documents in question, that disclosure of such documents will, in principle, undermine the protection of the purpose of investigations (see judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 93 and the case-law cited). Requiring the Commission to examine individually all the documents to which access has been requested would deprive that general presumption of its proper effect, which is to permit the Commission, when it receives a global request for access, to provide an equally global reply (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 68).

52 Nonetheless, that general presumption of non-disclosure concerning the entirety of the Commission’s administrative file in relation to a State aid control procedure is rebuttable and does not exclude the possibility of demonstrating that a given document, disclosure of which has been requested, is not covered by that presumption (see judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 66 and the case-law cited).

53 In the present case, it follows from those principles that, since the requested documents formed part of the Commission’s administrative files relating to State aid control procedures, which is not disputed by the applicant, the Commission was entitled to rely on the general presumption of non-disclosure in respect of all the requested documents and was not required to carry out a specific and individual examination of those documents.

54 Furthermore, the applicant has not adduced any evidence, either in his confirmatory application or before the Court, to demonstrate that certain documents should not have been covered by the general presumption of non-disclosure and has therefore not succeeded in rebutting that presumption.

55 Lastly, even if the applicant seeks to argue in relation to the third indent of Article 4(2) of Regulation No 1049/2001 that the Commission was not able to rely on that exception since the investigations in Cases SA.35177 and SA.40171 were closed, it should be noted that, according to the case-law, the general presumption of non-disclosure concerning the documents relating to the Commission’s administrative file resulting from a State aid control procedure applies regardless of whether the request for access concerns a control procedure which has already been closed or one which is pending (see, by analogy, judgments of 28 June 2012, Commission v Agrofert Holding, C‑477/10 P, EU:C:2012:394, paragraph 66, and of 28 March 2017, Deutsche Telekom v Commission, T‑210/15, EU:T:2017:224, paragraph 45).

56 In the light of the foregoing considerations, the second plea in law must be rejected as unfounded.

The third plea in law, alleging that the Commission wrongly concluded that there was no overriding public interest as referred to in the last clause of Article 4(2) of Regulation No 1049/2001

57 In point 3 of the decision refusing access, the Commission examined, in accordance with the last clause of Article 4(2) of Regulation No 1049/2001, whether there was an overriding public interest that would require it to refrain from using the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 and, consequently, to disclose the requested documents to the applicant.

58 First, the Commission examined the arguments put forward by the applicant in the confirmatory application, observing that it was for the applicant to demonstrate the existence of such an overriding public interest. In that regard, it concluded that the interests put forward by the applicant, concerning both the principle of transparency flowing from Regulation 2015/1589 and the control of legislative procedure and management of public funds, were of a general nature and that the applicant had not put forward any specific and substantial reasons explaining why those interests should prevail over the protection of the purpose of the Commission’s investigations.

59 Secondly, the Commission stated that it had also not identified any overriding public interest, observing that the requested documents were not related to a legislative act in respect of which the Court of Justice had recognised the existence of greater openness, but to an administrative procedure.

60 The applicant maintains, first, that he was not required to demonstrate the existence of an overriding public interest and, second, that such an overriding public interest, namely the public interest in ensuring the control of legislative procedure and management of public funds, has been established in the present case.

62 In that regard, it should be borne in mind that, under Article 4(2) of Regulation No 1049/2001, ‘the institutions shall refuse access to a document where disclosure would undermine the protection of’, inter alia, ‘the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure’.

63 In the present case, in the first place, it is clear that the Commission did not err in law in the decision refusing access by stating that it was for the applicant to demonstrate the existence of a public interest capable of prevailing over the protection of investigations as referred to in the third indent of Article 4(2) of Regulation No 1049/2001.

64 According to the case-law, it is for the person claiming the existence of an overriding public interest to show that there are specific circumstances warranting disclosure of the documents concerned (see judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 94 and the case-law cited, and of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 124).

65 As the applicant claimed in the confirmatory application that there was an overriding public interest in disclosure of the requested documents, it was therefore for him to show that there were specific circumstances justifying such disclosure.

66 The applicant’s argument that requiring a person making an application for access to adduce evidence demonstrating the existence of an overriding public interest is contrary to the principle set out in Article 6(1) of Regulation No 1049/2001 cannot call that finding into question. It is true that that provision, which provides for the practical arrangements for applications for access to documents pursuant to that regulation, provides that a person making an application for access ‘is not obliged to state reasons for the application’. However, where an institution receiving an application for access finds that the disclosure sought could undermine the protection of one of the interests listed in Article 4(2) of that regulation, as the Commission did in the reply to the initial application, it is for the person making the application for access who wishes, by arguing that there is an overriding public interest, to convince the institution in question to reconsider its position, to submit arguments to that effect, as has been stated in paragraph 64 above. Such a requirement cannot be interpreted as meaning that the person making an application for access must justify that application, that is to say, that he or she must indicate in that application the grounds or reasons why he or she is making such an application.

67 In the second place, as regards the applicant’s argument challenging the Commission’s conclusion, in the decision refusing access, that the interest concerning the control of legislative procedure and management of public funds did not prevail over the protection of the purpose of investigations, it must be borne in mind that the implementation of Article 4(2) of Regulation No 1049/2001, in so far as it provides for grounds for refusing to disclose documents relating to the protection of certain specific interests, unless there is an overriding public interest in their disclosure, requires the balancing of opposing interests in a given situation. The decision to grant access to the documents concerned or to refuse to disclose them therefore depends on the answer to the question of which interest must prevail in the particular case (see, to that effect, judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 42, and of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 125).

68 In that context, a person seeking to challenge a ground for refusal of disclosure must, first, claim the existence of a public interest capable of overriding that ground and, second, demonstrate precisely that, in the particular case, disclosure of the documents concerned would contribute specifically to ensuring the protection of that public interest to such an extent that the principle of transparency takes precedence over the protection of the interests underpinning the refusal of disclosure (judgment of 9 October 2018, Pint v Commission, T‑634/17, not published, EU:T:2018:662, paragraph 48).

69 However, considerations of a purely general nature cannot be such as to establish that, in the present case, the public interest was especially pressing and, therefore, capable of prevailing over the reasons justifying the refusal to disclose the documents in question (see, to that effect, judgments of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 158, and of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 93).

70 In the present case, the applicant maintained in the confirmatory application that disclosure of the requested documents would reveal information regarding the ‘source values’ and ‘calculations’, as well as the ‘internal return rate for renewable energy sources’, which would enable the public to control the national legislation on the subject and the management of public funds.

71 However, it must be pointed out that the applicant does not explain how disclosure of the requested documents would contribute specifically to ensuring the protection of the interest relating to public supervision of the amendment to the Czech national legislation in question and of the budget associated with the aid scheme provided for by that legislation to such an extent that that interest should take precedence over the protection of the purpose of the Commission’s investigations (see, to that effect, the case-law cited in paragraph 68 above). Such a requirement is of particular importance in the present case in so far as, as was noted by the Commission in the decision refusing access, the requested documents are the result of administrative procedures conducted by the Commission, and not a legislative procedure of the European Union, in respect of which wider access to documents is permitted under recital 6 of Regulation No 1049/2001 (see, to that effect, judgments of 20 March 2014, Reagens v Commission, T‑181/10, not published, EU:T:2014:139, paragraph 140, and of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 129).

72 It follows that the Commission was correct to take the view, in the decision refusing access, that the existence of an overriding public interest in disclosure of the requested documents had not been demonstrated in the present case. Consequently, there was no infringement of the last clause of Article 4(2) of Regulation No 1049/2001.

The fourth plea in law, alleging that the Commission failed to fulfil its obligation under Article 4(6) of Regulation No 1049/2001

74 In point 4 of the decision refusing access, the Commission stated that the general presumption of non-disclosure of the requested documents meant that it was under no obligation to grant partial access to those documents. The Commission also observed that general considerations could not prevail over the reasons justifying the protection of the requested documents.

75 The applicant submits that the Commission failed to comply with its obligation, provided for in Article 4(6) of Regulation No 1049/2001, to grant at least partial access to the requested documents and that it did not provide any specific reasons in that regard.

77 In that respect, it must be noted that Article 4(6) of Regulation No 1049/2001 provides that, ‘if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released’.

78 That said, according to the case-law, a general presumption of non-disclosure means that the documents covered by that presumption are not subject to 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 11 December 2018, Arca Capital Bohemia v Commission, T‑440/17, EU:T:2018:898, paragraph 32).

79 In the present case, since the Commission rightly refused, on the basis of a general presumption of non-disclosure, to grant the applicant access to the documents at issue, it was not required to consider whether, at the very least, partial access to those documents could be granted (see, to that effect, judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 68, and of 11 December 2018, Arca Capital Bohemia v Commission, T‑440/17, EU:T:2018:898, paragraph 33).

80 Accordingly, the Commission did not infringe Article 4(6) of Regulation No 1049/2001.

82 Under Article 134(1) of the Rules of Procedure, 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, he must be ordered to bear his own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter.

2. Orders Mr Ondřej Múka to bear his own costs and to pay those incurred by the European Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Muka v Commission (Access to documents - Documents relating to State aid control procedures - Judgment) [2022] EUECJ T-214/21 (05 October 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T21421.html Cite as: [2022] EUECJ T-214/21, EU:T:2022:607, ECLI:EU:T:2022:607

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