ClientEarth v Commission (Access to documents - Control system for ensuring compliance with the rules of the common fisheries policy - Judgment) [2023] EUECJ T-354/21 (01 February 2023)

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(Access to documents – Regulation (EC) No 1049/2001 – Control system for ensuring compliance with the rules of the common fisheries policy – Regulation (EC) No 1224/2009 – Documents concerning the implementation of fisheries control in Denmark and France – Partial refusal of access – Exception relating to the protection of the purpose of inspections, investigations and audits – General presumption of confidentiality – Overriding public interest – Aarhus Convention – Regulation (EC) No 1367/2006)

ClientEarth AISBL, established in Brussels (Belgium), represented by O. Brouwer, T. Oeyen and T. van Helfteren, lawyers,

European Commission, represented by C. Ehrbar, G. Gattinara and A. Spina, acting as Agents,

composed, at the time of the deliberations, of A. Marcoulli, President, S. Frimodt Nielsen (Rapporteur) and R. Norkus, Judges,

1 By its action based on Article 263 TFEU, the applicant, ClientEarth AISBL, seeks the annulment of Commission Decision C(2021) 4348 final of 7 April 2021 refusing access to certain documents requested 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), and pursuant to Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13) (‘the contested decision’).

2 The applicant is an international non-profit association whose aim is the protection of the environment.

3 On 15 July 2020, pursuant to Regulation No 1049/2001 and Regulation No 1367/2006, the applicant applied to the European Commission for access to the following documents:

– the individual report of the joint mission of the Directorate-General for Health and Food Safety and the Directorate-General for Maritime Affairs and Fisheries of the Commission on traceability and labelling of fishery products in respect of France;

– documents related to catch registration and data validation systems in France and Denmark, specifically finalised audit reports and decisions on action plans regarding compliance with certain requirements established under the framework of Council Regulation No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009 L 343, p. 1);

– documents containing basic and factual information on the existence of EU Pilot and infringement proceedings relating to the implementation of Regulation No 1224/2009.

4 On 11 September 2020, the Commission sent the applicant a partly negative reply to its application for access. It granted full access to the individual report on traceability and labelling of fishery products in France. In addition, it granted partial access to one of the requested audit reports concerning Denmark and to documents containing basic information on EU Pilot and infringement proceedings. However, it refused access to several other documents related to audits.

5 On 2 October 2020, the applicant submitted to the Commission a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001. Among the documents covered by the confirmatory application, those still at issue before the Court (‘the requested documents’) are as follows:

– five final audit reports regarding Denmark (documents numbered 2.1 to 2.4 and 2.6 in the contested decision);

– a document concerning the audit action plan follow up regarding France (document 2.8) and six final audit reports regarding France (documents 2.7 and 2.9 to 2.13).

6 In the contested decision, the Commission referred to the exception to disclosure set out in the third indent of Article 4(2) of Regulation No 1049/2001, which protects inter alia the purpose of investigations, and maintained its refusal of access to the requested documents.

7 In the first place, the Commission stated that it had prepared those documents in order to determine the application of Regulation No 1224/2009 by Denmark and France and that they described the shortcomings affecting the control by those Member States of compliance with the rules of the common fisheries policy. It explained that, after finding such shortcomings, but before formally opening the pre-litigation stage of the infringement procedure provided for in Article 258 TFEU, it could use various procedures on the basis of Regulation No 1224/2009, for example instructing the Member State concerned to conduct an administrative inquiry or adopting an action plan laying down the measures that it has to take to remedy the shortcomings identified, or even opening an EU Pilot procedure.

8 In the second place, as regards documents 2.1 to 2.4 and 2.6, which, in the Commission’s view, are audit reports forming part of the file of the infringement procedure identified under number 2014/2137 and launched against Denmark, the Commission stated that they were covered by the general presumption of confidentiality recognised by the case-law concerning investigations related to infringement procedures. According to the Commission, the applicant did not contest the applicability of that presumption to those documents.

9 In the third place, as regards the remainder of the requested documents, namely documents 2.7 to 2.13 concerning France, the contested decision describes them as finalised audit reports prepared in the context of the control activities carried out by the Commission under Regulation No 1224/2009. According to the contested decision, they refer to shortcomings in the implementation of the rules of the common fisheries policy. On the date of the contested decision, they were, as stated in that decision, part of files compiled with a view to opening infringement procedures. The contested decision states that, more specifically, documents 2.7 to 2.12 are in the file of the infringement procedure identified under number 2020/2282 and document 2.13 is part of the file of another investigation concerning a possible infringement. The contested decision concludes that, overall, documents 2.7 to 2.13 are therefore exempt from disclosure on the basis of the general presumption of confidentiality concerning infringement procedures.

10 In the fourth place, on the question of the existence of an overriding public interest justifying disclosure, the contested decision notes, first, that the applicant relies on the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) (‘the Aarhus Convention’), and on Regulation No 1367/2006, which concerns the application of that Convention to Union institutions and bodies. Next, in the contested decision, the Commission refers to the first sentence of Article 6(1) of Regulation No 1367/2006, which provides that, ‘as regards Article 4(2), first and third indents, of Regulation (EC) No 1049/2001, with the exception of investigations, in particular those concerning possible infringements of Community law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment’. The contested decision states that the presumption of the existence of an overriding public interest, provided for in Article 6(1) of Regulation No 1367/2006 in certain cases, does not apply in the present case. Moreover, the requested documents do not contain information relating to emissions into the environment.

11 Secondly, according to the contested decision, the applicant did not explain how disclosure of the requested documents would contribute to the public debate generated by the revision of Regulation No 1224/2009.

12 Thirdly, according to the contested decision, the Commission ensures that the public is informed about ongoing infringement procedures through press releases and on a dedicated website, which it is said to have done in the present case.

13 Fourthly, the contested decision refers to the case-law according to which an overriding public interest cannot be inferred either from a lack of speed of the investigations carried out by the Commission or from the applicant’s wish to monitor those investigations.

14 Fifthly and lastly, as regards the possibility of partial access to the requested documents, the contested decision applies the case-law according to which a general presumption of confidentiality indicates that the documents covered by it do not fall within an obligation of disclosure, in full or in part, of their content.

15 After the adoption of the contested decision, the Commission sent France a letter of formal notice in June 2021 in the context of the infringement procedure identified under number 2020/2282, to which documents 2.7 to 2.12 related. In September 2021, it sent France another letter of formal notice in the context of an infringement procedure identified under number 2021/2118, to which document 2.13 was related.

18 In support of the action, the applicant relies on two pleas in law. Under the first plea, it alleges misapplication of the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of the purpose of inspections, investigations and audits, and failure to state reasons. By the second plea, it submits that the Commission concluded incorrectly that there was no overriding public interest in disclosure of the requested documents. Moreover, in the applicant’s view, the Commission failed to state reasons for its finding that there was no overriding public interest.

The first plea, alleging misapplication of the third indent of Article 4(2) of Regulation No 1049/2001 and failure to state reasons

19 As a preliminary point, it should be noted that the arguments relating to a failure to state reasons and put forward in the first plea lack detail.

20 In essence, the applicant submits that no general presumption of confidentiality applies in the present case and that, consequently, the Commission should have stated reasons for its decision refusing access by demonstrating a risk that is not purely hypothetical that the interest protected by the third indent of Article 4(2) of Regulation No 1049/2001 would be specifically and actually undermined. However, the contested decision does not demonstrate such a risk and is therefore vitiated by a failure to state reasons.

21 It must be stated that, in making those arguments, the applicant criticises the Commission for having misapplied a general presumption of confidentiality. Those arguments are not therefore, strictly speaking, related to the obligation to state reasons, but are in fact related to the separate question of the merits of the grounds for the contested decision (see, to that effect, judgment of 24 September 2019, Fortischem v Commission, T‑121/15, EU:T:2019:684, paragraph 42 and the case-law cited).

22 Therefore, when, under the first plea, the applicant relies on a failure to state reasons for the contested decision, it does not put forward a separate plea alleging infringement of the obligation to state reasons.

23 In the light of those preliminary considerations, it must be noted that the first plea relied on by the applicant is divided, in essence, into two parts.

24 By the first part of the first plea, the applicant submits that the general presumption of confidentiality as regards inspections, investigations and audits is not compatible with the legal framework of the contested decision. In the applicant’s view, such a presumption is not compatible either with the Aarhus Convention or with Regulation No 1367/2006.

25 By the second part of the first plea, the applicant submits that the requested documents concerning France (documents 2.7 to 2.13) were not related to an ongoing inspection, investigation or audit procedure on the date of the contested decision.

The first part of the first plea, alleging that a general presumption of confidentiality is incompatible with the legal framework of the contested decision

26 The applicant emphasises the importance and urgency of protecting the environment. It observes that the European Union is party to the Aarhus Convention and that that Convention is therefore incorporated into EU law. In the applicant’s view, it follows that every act of EU law must be interpreted in a manner that is consistent with that Convention.

27 The applicant submits that the principle that EU law must be interpreted in a manner that is consistent with the Aarhus Convention, combined with the need for increased transparency in environmental matters, requires that the exceptions to disclosure provided for in Regulation No 1049/2001 be interpreted strictly. Where, as in the present case, a request for access relates to a limited number of specific documents that have been drawn up outside the context of an infringement procedure and which concern the protection of the environment, the applicant is of the opinion that a general presumption of confidentiality such as that relied on by the Commission in respect of the protection of the purpose of inspections, investigations and audits is incompatible with the objectives of transparency and public participation enshrined in the Aarhus Convention and Regulation No 1367/2006. Such a presumption cannot therefore apply to the requested documents and the Commission is obliged to balance the interests at stake and to carry out an individual and specific examination of each of those documents.

28 Furthermore, the applicant submits that the case-law supports its position, even though it acknowledges that the Courts of the European Union have held that Article 6(1) of Regulation No 1367/2006 – a provision specifying how the exceptions to disclosure provided for in Regulation No 1049/2001 apply to the environmental field – does not militate against the use of a general presumption to protect investigations of a possible infringement when the documents at issue have an environmental nexus. At the hearing, the applicant stated that it no longer intended to base its interpretation of Article 4(2) of Regulation No 1049/2001 on that provision of Regulation No 1367/2006. Nevertheless, in the applicant’s view, the Court has, in its case-law, not yet taken a view on the question whether, in principle, the presumption in question is intended, a priori, to apply in an environmental context or whether it is compatible with other provisions of Regulation No 1367/2006 or of the Aarhus Convention.

29 Furthermore, the applicant observes that the second subparagraph of Article 4(4) of the Aarhus Convention, set out in recital 15 of Regulation No 1367/2006, states that the exceptions to disclosure of environmental information must be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment. It submits that it is highly probable that the requested documents include information relating to such emissions, which would result in particular from the loss or abandonment of devices used to attract the fish to be caught, called ‘fish aggregating devices’. In the applicant’s view, it is necessary to carry out a concrete assessment of the requested information in each case in order to ensure that the interest protected by a ground for refusal of access is not outbalanced by the public interest served by disclosure, including the public interest in participating effectively in the EU legislative process in environmental matters. In the present case, the requested documents are particularly relevant for effective participation in the ongoing legislative process aimed at amending Regulation No 1224/2009.

31 It must be noted that, in the contested decision, the Commission applied the general presumption of confidentiality recognised by the case-law concerning investigations related to infringement procedures. It applied that presumption to the requested documents which relate to Denmark on the ground that, on the date of the contested decision, those documents were part of the file of an ongoing infringement procedure against that country (see paragraph 8 above). It also relies on that presumption in order to refuse to disclose the requested documents relating to France that, on the date of the contested decision, formed part, in its view, of one or the other of two files compiled with a view to opening infringement procedures (see paragraph 9 above).

32 In short, the applicant argues that, ab initio, a general presumption of confidentiality is incompatible with the objectives of the Aarhus Convention and of Regulation No 1367/2006 and cannot therefore apply to the requested documents that, in the applicant’s view, contain ‘environmental information’ and even ‘information related to emissions into the environment’ in the sense given to those two terms in the legal framework established by that convention and that regulation.

‘Regulation (EC) No 1049/2001 shall apply to any request by an applicant for access to environmental information held by Community institutions and bodies …’

‘Where Regulation (EC) No 1049/2001 provides for exceptions, these should apply subject to any more specific provisions in this Regulation concerning requests for environmental information. The grounds for refusal as regards access to environmental information should be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions in the environment. …’

‘A request for environmental information may be refused if the disclosure would adversely affect:

The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.’

37 It is apparent from the wording of the first paragraph of Article 3 of Regulation No 1367/2006, read in the light of recital 15 of that regulation, that Regulation No 1049/2001 applies to a request for access to environmental information, subject to any more specific rules applicable to such requests.

38 In addition, there is no doubt that, as the applicant observes, secondary EU legislation, including Regulation No 1049/2001, must be interpreted in accordance with the Aarhus Convention, to which the European Union is party (see, to that effect, judgments of 21 November 2018, Stichting Greenpeace Nederland and PAN Europe v Commission, T‑545/11 RENV, EU:T:2018:817, paragraph 106 and the case-law cited, and of 7 March 2019, Tweedale v EFSA, T‑716/14, EU:T:2019:141, paragraph 94 and the case-law cited).

39 However, the provision of the Aarhus Convention relied on by the applicant, namely Article 4(4) thereof, which is in part to be found in recital 15 of Regulation No 1367/2006, does not require an even more restrictive interpretation of the exceptions provided for in Article 4(2) of Regulation No 1049/2001 which would go beyond the principle already recognised by the case-law that those exceptions must be interpreted strictly (see, to that effect, judgment of 21 November 2018, Stichting Greenpeace Nederland and PAN Europe v Commission, T‑545/11 RENV, EU:T:2018:817, paragraphs 105 to 107 and the case-law cited).

40 In addition, Article 6(1) of Regulation No 1367/2006, which governs the application of exceptions concerning requests for access to environmental information, provides:

‘As regards Article 4(2), first and third indents, of Regulation (EC) No 1049/2001, with the exception of investigations, in particular those concerning possible infringements of Community law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4 of Regulation (EC) No 1049/2001, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment.’

41 The manner in which the two sentences of Article 6(1) of Regulation No 1367/2006 are drafted and their scheme indicate clearly the express intention of the legislature to remove infringement procedures from the scope of that provision as a whole (see, to that effect, judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 84).

42 In particular, Article 6(1) of Regulation No 1367/2006 does not affect the examination which the Commission must carry out pursuant to Regulation No 1049/2001 when a request for access concerns documents relating to an investigation procedure, in particular to an infringement procedure at the pre-litigation stage (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 85, and of 4 October 2018, Daimler v Commission, T‑128/14, EU:T:2018:643, paragraph 103). That provision also has no bearing on the question whether the institution concerned is or is not required to carry out a specific and individual examination of the documents or information requested (see, to that effect, judgment of 4 October 2018, Daimler v Commission, T‑128/14, EU:T:2018:643, paragraph 104 and the case-law cited).

43 Furthermore, it is apparent from the judgments of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), and of 4 October 2018, Daimler v Commission (T‑128/14, EU:T:2018:643), that both the Court of Justice and the General Court have accepted a general presumption of confidentiality protecting investigations relating to infringement procedures, including in respect of documents relating to the environmental field.

44 It follows from the foregoing that the applicant submits incorrectly that the principle that EU law must be interpreted in a manner that is consistent with the Aarhus Convention or that Regulation No 1049/2001 must be interpreted in a manner that is consistent with the objectives of that Convention and of Regulation No 1367/2006 precludes a general presumption of confidentiality for the purpose of protecting investigations relating to infringement procedures where the documents at issue contain ‘environmental information’ or ‘information related to emissions into the environment’ in the sense given to those two terms in the legal framework established by that Convention and that regulation.

45 Therefore, since the application of such a presumption is independent of whether or not the documents concerned have an environmental nexus, the applicant’s arguments concerning the definition of the concepts of environmental information and information related to emissions into the environment are ineffective and there is thus no need to examine them.

46 Lastly, it should be borne in mind that the general presumptions of confidentiality recognised by the case-law concerning certain categories of documents, with the aim of protecting the purpose of investigations, apply irrespective of whether or not the request for access specifically identified the document or documents concerned. That is the reason why the fact, relied on by the applicant, that the requested documents are few in number and have been specifically identified, is irrelevant (see, to that effect, judgment of 13 March 2019, AlzChem v Commission, C‑666/17 P, not published, EU:C:2019:196, paragraphs 31 and 32).

The second part of the first plea, alleging that the requested documents concerning France (documents 2.7 to 2.13) were not related to an ongoing inspection, investigation or audit procedure on the date of the contested decision

48 Assuming that a general presumption of confidentiality can be applied to the requested documents in order to protect the purpose of investigations concerning a possible infringement, the applicant does not dispute that the requested documents concerning Denmark (documents 2.1 to 2.4 and 2.6) are covered by such a presumption. By contrast, by the second part of the first plea, it disputes the application of that presumption to the requested documents concerning France (documents 2.7 to 2.13).

49 In that regard, the applicant observes that the case-law requires an EU institution refusing access on the basis of the exceptions provided for in Article 4 of Regulation No 1049/2001 to explain how access to a document could specifically and actually undermine the interests protected by that exception. The applicant also observes that, according to the case-law, the risk of such interests protected by the exception being undermined must be reasonably foreseeable and not purely hypothetical.

50 The applicant infers from the Aarhus Convention and from Regulation No 1367/2006 that those requirements of the case-law are higher when the request for access relates to environmental information. In other words, the exceptions to disclosure of such information, including general presumptions of confidentiality, must be interpreted restrictively, taking into account the interests served in disclosure.

51 The applicant acknowledges that, according to the case-law, the general presumption protecting the purpose of investigations concerning a possible infringement may be invoked after a letter of formal notice has been sent to the Member State concerned, which marks the commencement of the formal phase of the infringement procedure, but also beforehand in the event that an EU Pilot procedure has been opened, at least until the EU Pilot procedure is closed and there is a definitive decision not to open a formal infringement procedure against that Member State. However, in the applicant’s view, documents 2.7 to 2.9 and 2.11 to 2.13 were not connected, at the time that the contested decision was adopted, either to an EU Pilot procedure or to a letter of formal notice addressed to France. As regards document 2.10, the applicant submits that an EU Pilot procedure had indeed been opened on the basis of that document, but it was officially closed in August 2020 and, on the date of the contested decision, no letter of formal notice had been sent.

52 In the absence of an ongoing EU Pilot procedure or infringement procedure, the applicant submits that the general presumption of confidentiality is not applicable. It submits that, therefore, the regular rule must apply, which is that the institution must determine in respect of each document that the risk that disclosure would undermine inspections, investigations or audits is reasonably foreseeable and not purely hypothetical. In the light of that rule, the applicant concludes that the risk alleged in the contested decision that disclosure of documents 2.7 to 2.13 would undermine the purpose of inspections, investigations or audits is hypothetical.

53 Lastly, the applicant submits that the audits following which documents 2.7 to 2.13 were drawn up form part of the monitoring of national measures taken by France to implement the provisions of Regulation No 1224/2009. On this ground, in the applicant’s view, their content is limited to pre-existing facts and possible improvements that could be considered in the event of deficiencies, without any position being adopted by the Commission as regards a possible infringement of the Treaties. Those documents are therefore different from those drawn up by the Commission for the purpose of commencing an infringement procedure, such as letters of formal notice or reasoned opinions. Their disclosure would not therefore compromise the climate of trust required between the Commission and the Member State concerned before any potential infringement procedure.

55 As regards documents 2.7 to 2.13 concerning France, the Commission, in the contested decision, applied the general presumption of confidentiality protecting investigations relating to infringement procedures, here, for that Member State’s non-compliance with the rules of the common fisheries policy.

56 In the contested decision, the Commission focused in particular on document 2.10, which is an audit report identifying shortcomings in the national system for monitoring the French fleet operating outside EU waters. According to the contested decision, the finding of those shortcomings led to the opening of an EU Pilot procedure against France which did not result in them being remedied. The contested decision states that that procedure was therefore closed negatively in August 2020 and the initiation of an infringement procedure was envisaged, without a definitive decision having yet been taken in that regard on the date of the contested decision.

57 As is apparent from the contested decision, the Commission took the view that document 2.10 and the other documents concerning France, namely documents 2.7 to 2.9 and 2.11 to 2.13, related to files compiled in order to decide whether the formal initiation of infringement procedures was justified. The contested decision provides that documents 2.7 to 2.12 are part of the file of an investigation identified under number 2020/2282 and launched against France concerning possible infringements of the rules of the common fisheries policy. The Commission took the view that document 2.13 is part of the file of another investigation relating to such infringements in respect of which, on the date of the contested decision, the Commission envisaged initiating a procedure under Article 258 TFEU.

58 In the first place, it should be borne in mind that it is apparent from Article 4 of Regulation No 1049/2001, which establishes a system of exceptions to access to documents, that the right of access is subject to certain limits based on reasons of public or private interest. As such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (see, to that effect, judgment of 4 October 2018, Daimler v Commission, T‑128/14, EU:T:2018:643, paragraphs 109 and 112 and the case-law cited, and of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 38 and the case-law cited).

59 Nevertheless, as was stated in paragraphs 37 to 39 above and contrary to what the applicant claims, the Aarhus Convention and Regulation No 1367/2006 do not create an even stricter requirement of interpretation if the request for access concerns environmental information.

60 In order to justify the refusal of access to a document disclosure of which has been requested, it is not sufficient, in principle, that the document relates to an activity referred to in Article 4(2) of Regulation No 1049/2001. In principle, the institution to which the request is addressed must explain how access to that document could specifically and effectively undermine the interest protected by the exception or exceptions on which it relies. Furthermore, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (see judgment of 4 October 2018, Daimler v Commission, T‑128/14, EU:T:2018:643, paragraph 113 and the case-law cited).

61 However, it is open to the 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 judgments of 4 October 2018, Daimler v Commission, T‑128/14, EU:T:2018:643, paragraph 114 and the case-law cited, and of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 40 and the case-law cited).

62 The objective of such presumptions is the possibility, for the 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 (see judgment of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 41 and the case-law cited).

63 In that regard, as general presumptions constitute an exception to the rule that the EU institution concerned is obliged to carry out a specific and individual examination of every document which is the subject of a request for access and, more generally, to the principle that the public should have the widest possible access to the documents held by the institutions of the European Union, they must be interpreted and applied strictly (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 80 and the case-law cited; judgment of 28 May 2020, Campbell v Commission, T‑701/18, EU:T:2020:224, paragraph 39).

64 The Court of Justice has recognised the existence of a general presumption that disclosure of documents relating to an infringement procedure at the pre-litigation stage is presumed to undermine the protection of the purpose of investigations (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 65), without the possibility that such documents may relate to environmental protection having a bearing on the applicability of that presumption (see paragraph 43 above). The Commission is entitled to maintain the confidentiality of documents assembled in the course of an investigation relating to infringement proceedings where their disclosure might undermine the climate of trust which must exist, between the Commission and the Member State concerned, in order to achieve a mutually acceptable solution to any contraventions of EU law that may be identified (see judgment of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 83 and the case-law cited).

65 Such a general presumption of confidentiality applies irrespective of whether the documents at issue had been drawn up during the informal stage of the infringement procedure, that is to say before the Commission sent the letter of formal notice to the Member State concerned, or during the formal stage thereof, that is to say after that letter was sent (see, to that effect, judgment of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraphs 40 and 41).

66 As regards, in particular, the informal stage of the infringement procedure, a presumption of confidentiality has been recognised inter alia for documents relating to an EU Pilot procedure, which is a procedure to formalise or structure the exchanges of information which traditionally occurred between the Commission and the Member States during that stage (see, to that effect, judgment of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraphs 43 and 51). Thus, the EU Pilot procedure is a precursor of sorts to the procedure provided for in Article 258 TFEU and is therefore inextricably linked with the infringement procedure (see, to that effect, judgment of 15 December 2021, Stichting Comité N 65 Ondergronds Helvoirt v Commission, T‑569/20, EU:T:2021:892, paragraph 40).

67 The general presumption of confidentiality of documents relating to an EU Pilot procedure applies until that procedure is closed and there is a definitive decision not to initiate a formal infringement procedure (see, to that effect, judgment of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 45).

68 In the second place, the Court of Justice has considered that the fact that documents had been placed on the file in an administrative procedure was decisive for the purpose of concluding that those documents were connected with that procedure (see judgment of 4 October 2018, Daimler v Commission, T‑128/14, EU:T:2018:643, paragraph 166 and the case-law cited). The general presumption of confidentiality does not apply in principle to documents which, at the time of the decision refusing access, had not been placed in a file concerning an ongoing administrative procedure (see, to that effect, judgment of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 44).

69 It is in the light of all that case-law that it must be determined whether, in the contested decision, the Commission was correct to apply to documents 2.7 to 2.13 concerning France the general presumption of confidentiality of documents relating to an infringement procedure, including the pre-litigation stage of that procedure.

70 In the present case, it is apparent from the contested decision that, on the date of that decision, documents 2.7 to 2.12 related to the file of investigation 2020/2282 concerning France’s failure to fulfil its obligations under the common fisheries policy. The contested decision gives the example of document 2.10 – a final report drawn up following an audit of the French external fleet – which led to the finding of inadequate compliance by France with its obligations and to the initiation of an EU Pilot procedure. According to the contested decision, that procedure did not result in the shortcomings found by the Commission being resolved, with the result that the latter then envisaged initiating an infringement procedure.

71 The contested decision also explains that documents 2.7 to 2.9 and 2.11 were drawn up following audits to assess the implementation by France of the action plan to remedy the shortcomings in the system for the collection and registration of catch data for fishery products. According to the contested decision, document 2.12 concerns, more specifically, the system for the registration of catch data for bluefin tuna. The contested decision states that each of those documents led, like document 2.10, to the finding of unresolved shortcomings with regard to the implementation of the rules of the common fisheries policy and, on the date of the contested decision, the services of the Commission were consulting the College of Commissioners with a view to adopting a letter of formal notice.

72 Lastly, as regards document 2.13, the contested decision states that it is a final audit report concluding that the measures adopted by France to ensure compliance with the obligations applicable when ‘landing’ fishery products, within the meaning of Regulation No 1224/2009, were inadequate. The contested decision states that that document is included in the file of another investigation relating to those measures and that, on the date of that decision, the services of the Commission were in the process of consulting the College of Commissioners concerning a possible letter of formal notice.

73 Accordingly, it is apparent from the contested decision that, on the date on which it was adopted, documents 2.7 to 2.13 were part of files of ongoing investigations aimed at the possible initiation of infringement proceedings, those investigations having been identified in a sufficiently precise manner in that decision and being at an advanced stage, in the present case that of consultations with the College of Commissioners with a view to adopting a letter of formal notice to be addressed to France.

74 It follows that, contrary to what the applicant submits, on the date of adoption of the contested decision, the opening of infringement proceedings on the basis of those investigations was not hypothetical.

75 It must therefore be held that the Commission did not make an error of law or assessment in concluding, in the contested decision, that documents 2.7 to 2.13 were, on the date of that decision, documents relating to infringement procedures at the pre-litigation stage and that they were therefore covered by a general presumption of confidentiality.

76 Moreover, it may be noted that, as mentioned in paragraph 15 above, the investigations the files of which contained documents 2.7 to 2.13 did in fact give rise to the formal opening of infringement procedures between two and five months after the adoption of the contested decision.

77 As regards the applicant’s argument that the requested documents contain no position on the part of the Commission, it must be stated that it does not invalidate the conclusion set out in paragraph 75 above, since it conflicts with the very nature of those documents. Their purpose is to assess the conduct of the Member State concerned and any deficiencies in the control which it must exercise in order to ensure compliance with the rules of the common fisheries policy.

78 Accordingly, the second part of the first plea cannot be upheld and the first plea must be rejected in its entirety.

The second plea, alleging an incorrect finding that there is no overriding public interest, and a failure to state reasons

79 By analogy to what has been stated in paragraphs 19 to 22 above concerning the first plea, it should be noted as a preliminary point that the arguments relating to a failure to state reasons put forward by the applicant in the second plea are also very limited in scope and relate rather to the merits of the Commission’s assessment.

80 In essence, the applicant submits that the identification of an overriding public interest in disclosure involves balancing the respective interests, namely, on the one hand, the interest protected by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 and, on the other, the general interest promoted by disclosure. The applicant argues that the Commission did not provide an adequate statement of reasons in relation to that balancing exercise.

81 It should be noted that those arguments, relating to the inadequacy of the balancing of interests, do not concern the obligation to state reasons, but that they call into question the merits of the contested decision (see, to that effect and by analogy, judgment of 6 September 2013, Sepro Europe v Commission, T‑483/11, not published, EU:T:2013:407, paragraph 107 and the case-law cited).

82 It must therefore be concluded that, when the applicant alleges a failure to state reasons in the context of the second plea, it does not put forward a separate plea alleging infringement of the obligation to state reasons.

83 In the light of the foregoing preliminary considerations, the view should be taken that, by the second plea, the applicant disputes the finding of the contested decision that there is no overriding public interest justifying disclosure of the requested documents. Its arguments in that regard are divided into three parts, concerning, respectively, the protection of human health and the environment, consumer protection and the principle of good administration of EU funds.

84 Accordingly, in the first place, the applicant observes that a legislative process to amend Regulation No 1224/2009 is ongoing in which it wishes to participate as much as possible. Access to the requested documents would enable it to advocate more effectively for the protection of human health and the environment during that legislative process, which, in its view, constitutes an overriding public interest justifying disclosure.

85 In the second place, the applicant submits, referring to certain pieces of secondary legislation the objective of which is the protection of consumers, that the provision of correct information to consumers regarding whether seafood products have been caught with due regard for the environment contributes to fulfilling that objective. In the applicant’s view, the requested documents will enable it to determine whether consumers can be confident that fish from a particular area are being caught by adequately controlled vessels.

86 In the reply, in order to address any objection of inadmissibility, the applicant states that its argument based on consumer protection is merely a concretisation of its arguments relating to the environment.

87 In the third and last place, the applicant submits that there is an overriding public interest in disclosing the requested documents as they relate to possible infringements of the principle of good administration applied to EU funds, including to the European Maritime, Fisheries and Aquaculture Fund.

89 In the contested decision, the Commission alleges that the applicant failed to demonstrate that the requested documents would be relevant to the debate concerning the revision of Regulation No 1224/2009. In addition, the Commission takes the view that it published sufficient information on the infringement procedures concerned.

90 The contested decision does not address the issue of consumer protection or that of the good administration of EU funds.

91 It should be noted that, in accordance with Article 4(2) of Regulation No 1049/2001, ‘the institutions shall 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’.

92 According to settled case-law, it is for the person arguing that there is an overriding public interest to show that there are specific circumstances justifying the disclosure of the documents concerned (see judgment of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 124 and the case-law cited).

93 Accordingly, the system of exceptions laid down in Article 4 of Regulation No 1049/2001, and particularly in Article 4(2), is based on a weighing of the opposing interests in a given situation, that is to say, on the one hand, the interests which would be promoted by the disclosure of the documents in question and, on the other, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on what interest must prevail in the particular case (see judgment of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 125 and the case-law cited).

94 Although it is true that the applicant explains in a convincing manner that the requested documents would be necessary for it to participate effectively in the legislative process for the revision of Regulation No 1224/2009, with the aim of increasing the protection of human health and the environment, its explanations are not sufficient to demonstrate the existence of an overriding public interest justifying disclosure.

95 In that regard, it should be noted that the administrative activity of the Commission does not require such extensive access to documents as that required by the legislative activity of an EU institution (see judgments of 4 October 2018, Daimler v Commission, T‑128/14, EU:T:2018:643, paragraph 118 and the case-law cited, and of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 37 and the case-law cited).

96 Furthermore, it must be noted, as the Commission contends, that the applicant’s argument could be extended to any document relevant to participation in the legislative debate on environmental matters and thus make worthless the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001. It is therefore too general to be an overriding public interest justifying disclosure (see, to that effect and by analogy, judgments of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 93, and of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 130 and the case-law cited).

97 As regards the applicant’s arguments relating to consumer protection and the good administration of EU funds, they are also, in any event, too general in nature. Moreover, as it stated in the contested decision, the Commission ensures that the public is informed about the progress of specific infringement cases through the regular publication of press releases (see, to that effect and by analogy, judgment of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 60).

98 Accordingly, none of the three parts of the second plea can be upheld and the plea must be rejected in its entirety.

99 For the purposes of the assessment of whether there is an overriding public interest, the applicant asks the Court to order the production of the requested documents by way of a measure of inquiry pursuant to Article 91(c), in conjunction with Article 104, of its Rules of Procedure.

100 In that regard, it should be borne in mind that in its review of the decision to refuse access to documents, the Court must refer to the reasoning on which the decision is based. Thus, if that reasoning consists in an assessment of the effects which disclosure of the document would have on certain rights and interests, review will be possible in so far as the Court is able to form its own view concerning the substantive content of the document. In such cases, the Court must consult the document in camera (see judgment of 12 May 2015, Unión de Almacenistas de Hierros de España v Commission, T‑623/13, EU:T:2015:268, paragraph 105 and the case-law cited).

101 However, under a general presumption, as in the present case, the institution may reply to a global application without conducting a specific and individual examination of each document to which access is sought (see judgment of 12 May 2015, Unión de Almacenistas de Hierros de España v Commission, T‑623/13, EU:T:2015:268, paragraph 106 and the case-law cited).

102 Therefore, it is not for the Court to conduct a specific assessment of each of the requested documents in order to satisfy itself that access to these documents would undermine the interests invoked.

103 It follows from the foregoing that the request for a measure of inquiry must be refused.

104 In the light of all the foregoing considerations, since neither of the two pleas put forward by the applicant in support of its claims can be upheld, the action must be dismissed in its entirety.

105 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.

106 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ClientEarth v Commission (Access to documents - Control system for ensuring compliance with the rules of the common fisheries policy - Judgment) [2023] EUECJ T-354/21 (01 February 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T35421.html Cite as: [2023] EUECJ T-354/21, EU:T:2023:34, ECLI:EU:T:2023:34

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