Asesores Comunitarios v Commission (Access to documents - Documents relating to the recovery and resilience plan submitted by a Member State to the Commission - Judgment) [2023] EUECJ T-77/22 (15 February 2023)

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(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the recovery and resilience plan submitted by a Member State to the Commission – Documents originating from a Member State – Refusal to grant access – Exception relating to the financial, monetary or economic policy of the European Union or of a Member State)

Asesores Comunitarios, SL, established in Madrid (Spain), represented by J. Monrabà Bagan, lawyer,

European Commission, represented by A. Spina, T. Adamopoulos and M. Burón Pérez, acting as Agents,

Kingdom of Spain, represented by A. Gavela Llopis and L. Aguilera Ruiz, acting as Agents,

composed of A. Marcoulli, President, S. Frimodt Nielsen (Rapporteur) and R. Norkus, 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 its action under Article 263 TFEU, the applicant, Asesores Comunitarios, SL, seeks annulment of the decision of the European Commission of 3 December 2021 refusing it access to certain documents originating from the Kingdom of Spain, requested 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) (‘the contested decision’).

2 The applicant is a Spanish company which advises public authorities or undertakings in relation to EU political and regulatory matters and which, in that context, ensures, inter alia, that the decision-making process of EU institutions is monitored.

3 In the present case, the documents to which access was refused by the contested decision concern the recovery and resilience plan (‘the RRP’) submitted by the Kingdom of Spain to the Commission, with the outline of its various parts, in order to be able to benefit from a financial support measure decided upon by the European Union to accelerate the implementation of sustainable reforms and related public investment in the Member States.

The recovery and resilience facility and the RRP submitted by the Kingdom of Spain

4 On 12 February 2021, the European Parliament and the Council of the European Union adopted Regulation (EU) 2021/241 establishing the Recovery and Resilience Facility (OJ 2021 L 57, p. 17). That facility is a temporary recovery instrument which enables the Commission to raise funds in order to assist Member States in implementing reforms and investments which are in line with the EU's priorities. To that end, the facility makes available to the Member States EUR 723.8 billion in current prices in the form of grants and loans. The general objective of the facility is to mitigate the economic and social consequences of the COVID-19 pandemic and to make European economies and societies more sustainable, more resilient and better prepared for the challenges and opportunities presented by the green and digital transitions.

5 In that context, the Member States prepare the RRPs. Those plans are to set out the reform and investment agenda of the Member State concerned. Plans that are eligible for financing under the facility are to comprise measures for the implementation of reforms and public investment, which may also include public schemes that are intended to incentivise private investment.

7 That RRP was evaluated by the Commission in accordance with the procedure laid down in Regulation 2021/241 in order to be able to form the subject matter of a proposal for an implementing decision submitted to the Council for approval. On that basis, on 16 June 2021, the Commission evaluated the Kingdom of Spain’s RRP positively and proposed an implementing decision to the Council. That proposal and its annex were accompanied by a Commission working document analysing the content of the RRP and providing further details on its evaluation. In July 2021, the Council adopted the implementing decision concerning the approval by the Commission of the positive evaluation of the Kingdom of Spain’s RRP.

8 The proposal for an implementing decision of 16 June 2021, the annex thereto, the July 2021 implementing decision and additional documents, such as the operational arrangements subsequently agreed with the Kingdom of Spain concerning the implementation of the RRP, were made available to the public on the Commission and the Council’s websites.

9 In addition, the RRP of the Kingdom of Spain, as evaluated positively by the Commission, was made accessible to the public on the Spanish Government’s website and, by means of a reference to that website, on the Commission’s website.

10 The Kingdom of Spain’s RRP, as evaluated by the Commission and approved by the Council, describes national economic policy measures, in the form of reforms and investments aimed, in particular, at responding to challenges identified in the country-specific recommendations established in the context of the European Semester for economic and social policy coordination. The successful implementation of those national measures is to enable the Kingdom of Spain to receive non-reimbursable support of approximately EUR 70 billion.

11 On 3 and 12 May 2021, the applicant requested, in accordance with Regulation No 1049/2001, access to the ‘national recovery and resilience plan of [the Kingdom of] Spain submitted before the … Commission, and the documents exchanged between the Spanish Government and the … Commission’, ‘from the date that the Spanish Government presented the plan before the … Commission’.

12 By letter of 7 June 2021, the Commission’s working party for recovery and resilience (Recovery and Resilience Task Force) (‘the working party’) informed the applicant that four documents were covered by its request, namely:

– the RRP of the Kingdom of Spain officially submitted by the Spanish authorities to the Commission on 30 April 2021 (‘document 1’);

– the letter from the Spanish authorities announcing the official submission of the RRP on 30 April 2021, registered under reference Ares(2021)2902451 (‘document 2’);

– the acknowledgment of receipt sent by the Commission to the Spanish authorities on 30 April 2021, registered under reference Ares(2021)2934013 (‘document 3’);

– the letter from the Spanish authorities to the Commission of 3 May 2021, registered under reference Ares(2021)2961363, including information on components 23 and 30 of the RRP (‘document 4’).

13 In its letter of 7 June 2021, the working party stated that a copy of document 3 from the Commission was annexed thereto. On the other hand, as regards documents 1, 2 and 4, which originated from the Spanish authorities, the working party stated that public access to those documents could not be granted on account of the exceptions provided for in the fourth indent of Article 4(1)(a) (protection of the public interest as regards the financial, monetary or economic policy of the European Union or of a Member State) and by the first subparagraph of Article 4(3) (protection of the ongoing decision-making process) of Regulation No 1049/2001. The working party also stated that it was not possible to grant partial access to those documents.

14 On 25 June 2021, in accordance with Article 7(2) of Regulation No 1049/2001, the applicant submitted to the Commission a confirmatory application seeking a review of the position adopted in the letter of 7 June 2021. In essence, the applicant disputed the application of the exceptions relied on by the working party.

15 On 3 December 2021, the Secretary-General of the Commission adopted the contested decision. She stated, first of all, that she took the view that the reasons relied on by the Spanish authorities to justify the decision not to disclose documents Nos 1, 2 and 4 were prima facie sufficient to justify the application of the exceptions previously referred to by the working party. The Secretary General also stated that the refusal to grant access to certain parts of documents 2 and 4 was justified by the exception provided for in Article 4(1)(b) of Regulation No 1049/2001 (protection of personal data). She also observed, first, that the confirmatory application did not set out any overriding public interest in disclosure of the requested documents capable of prevailing over the interests protected by Article 4(3) of Regulation No 1049/2001 and, secondly, that her own analysis did not lead her to find, in any event, that there was such an interest. On that point, the Secretary General pointed out that the publication of the plans drawn up by the Member States was their responsibility. Lastly, the Secretary-General stated that it was not possible in the present case to grant partial access to the requested documents.

17 The Commission, supported by the Kingdom of Spain, contends that the Court should:

– dismiss as inadmissible the request that the Commission be ordered to grant the applicant access to the requested documents;

18 As regards the first head of claim, it should be noted that it asks the Court to grant access to the requested documents. Such an application is to be interpreted as a request for directions to be issued to the Commission as to the consequences to be drawn from the possible annulment of the contested decision.

19 However, it should be noted that, in the context of the review of legality under Article 263 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the European Union (see order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited, and judgment of 25 September 2018, Sweden v Commission, T‑260/16, EU:T:2018:597, paragraph 104 and the case-law cited).

20 It follows that the request for access to the requested documents, submitted under the first head of claim, must be rejected on grounds of lack of jurisdiction.

21 In support of its claim for annulment of the contested decision, the applicant puts forward four pleas in law, alleging various infringements of Article 4 of Regulation No 1049/2001, namely:

– first, infringement of the fourth indent of Article 4(1)(a) of that regulation in that the Commission incorrectly applied the exception to disclosure based on the public interest as regards the financial, monetary or economic policy of the European Union or a Member State;

– second, infringement of Article 4(1)(b) of that regulation in that the Commission incorrectly applied the exception to disclosure based on the protection of privacy and the integrity of the individual;

– third, infringement of the first clause of the first subparagraph of Article 4(3) of that regulation in that the Commission incorrectly applied the exception to disclosure based on the protection of an ongoing decision-making process;

– fourth, infringement of the last clause of the first subparagraph of Article 4(3) of that regulation in that it is established that there is an overriding public interest overriding the need to protect the ongoing decision-making process.

22 In that regard, it should be noted that the first plea in law and the third and fourth pleas concern the exceptions which were relied on in order to refuse access to the full content of the requested documents, whereas the second plea concerns, for its part, the reason given for refusing access to certain personal data referred to in documents 1 and 2.

The first plea in law, alleging infringement of the fourth indent of Article 4(1)(a) of Regulation No 1049/2001 on account of the improper application of the exception relating to the protection of the public interest as regards the financial, monetary or economic policy of the European Union or of a Member State

23 The applicant disputes the application, in the present case, of the exception relating to the protection of the public interest as regards, in particular, the financial or economic policy of a Member State, provided for in the fourth indent of Article 4(1)(a) of Regulation No 1049/2001. In the first place, the Spanish authorities did not give proper reasons for their position, in particular because the alleged need ‘to ensure an adequate climate and financial stability in view of the structural reforms’ is merely a ‘smokescreen’. In the second place, the Commission did not set out the reasons relied on by the Spanish authorities and did not satisfy itself that there was a sufficient statement of reasons to justify the application of the exception relied on. In the third place, the Commission should have verified whether disclosure of the requested documents was likely actually and not hypothetically to jeopardise the financial climate and stability of the Kingdom of Spain.

24 In the latter regard, the applicant criticises certain statements made by the Commission in the contested decision.

25 First, the assertion that ‘release of documents at this stage could negatively impact the economic policy of [the Kingdom of] Spain, given the size of the plan on the Gross Domestic Product’, is irrelevant, since other documents relating to current funding programmes or funds received by the Kingdom of Spain have been made public.

26 Secondly, the assertion that ‘disclosing the detailed withheld information would produce serious political implications that could negatively impact the disbursements of the EUR 69.5 billion’ is abstract and does not reflect a tangible threat. Even if it were accepted that certain parts of the requested documents were politically sensitive, their disclosure could not be concealed from citizens, since the reforms and disbursements envisaged are public in nature. Other politically sensitive documents, including RRP from other Member States, are public and their sensitivity has not precluded their disclosure. Moreover, the funds granted to the Kingdom of Spain have already been decided and the disbursement is merely an administrative matter which takes place after the milestones and targets set out in the RRP of the Kingdom of Spain are met.

27 Thirdly, the assertion that ‘public access to those documents [would] lead to interferences and speculations at each stage of the negotiating process, and eventually entail risks to financial stability’ relates, in reality, to a document which, on the date of adoption of the contested decision, had already been assessed and validated by the Commission and approved by the Council. Interference and speculation cannot therefore impede publication of the RRP initially approved by the Kingdom of Spain.

28 Fourthly, the assertion that disclosure of the requested documents ‘would lead to unjustified speculations on the financial policy of the Member State by means of textual comparisons’ is unfounded. On the contrary, it is the lack of transparency which leads to speculation as to the reasons for the non-disclosure of those documents. Since the negotiation procedure has ended, that reasoning no longer applies in any event.

29 The Commission, supported by the Kingdom of Spain, contends that this plea is unfounded for the reasons set out in the contested decision.

30 It is appropriate to recall that Regulation No 1049/2001 is intended, as is indicated in recital 4 and Article 1 thereof, to give the public a right of access to documents of the institutions which is as wide as possible (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 33, and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 40). Pursuant to Article 2(3) of that regulation, that right extends not only to documents drawn up by an institution but also to documents received by an institution from third parties, including the Member States, as is expressly stated in Article 3(b) of the regulation.

31 However, that right of access is nonetheless subject to certain limits based on grounds of public or private interest (judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 62, and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 41). In particular, Article 4(5) of Regulation No 1049/2001 provides that a Member State may request an institution not to disclose a document originating from that Member State without its prior agreement.

32 In the present case, the Kingdom of Spain made use of the option given to it by Article 4(5) of Regulation No 1049/2001 and asked the Commission not to disclose the requested documents which it had sent to it in April and May 2021. That Member State based its objection, inter alia, on the exception relating to the protection of the public interest as regards its economic policy laid down in the fourth indent of Article 4(1)(a) of that regulation. Consequently, in the contested decision, the Commission based its refusal to grant access to the requested documents on the objection voiced by the Spanish authorities in accordance with Article 4(5) of Regulation No 1049/2001.

33 In that regard, concerning the scope of the objection raised by a Member State pursuant to Article 4(5) of Regulation No 1049/2001, it is clear from case-law that that provision entitles the Member State concerned to object to the disclosure of documents originating from it only on the basis of the substantive exceptions laid down in Article 4(1) to (3) and only if it gives proper reasons for its position (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 59, and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 50).

34 With regard to the scope of Article 4(5) of Regulation No 1049/2001 as regards the institution to which a request for access to a document has been made, it must be recalled that the EU judicature has already held that, from the point of view of the person requesting access, the Member State’s intervention does not alter the fact that the decision subsequently addressed to him by the institution in reply to his request for access to a document in its possession is in the nature of a European Union act (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 60; and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 51).

35 The institution to which a request for access has been made, as the maker of a decision to refuse access to documents, is therefore responsible for the lawfulness of that decision. The Court has therefore held that the institution cannot accept a Member State’s objection to disclosure of a document originating from that State if no reasons at all are given for the objection or if the reasons relied on by that State for refusing access to the document in question do not refer to the exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001 (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 61, and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 52).

36 It follows that, before refusing access to a document originating from a Member State, the institution concerned must examine whether that State has based its objection on the substantive exceptions in Article 4(1) to (3) of Regulation No 1049/2001 and has given proper reasons for its position. Consequently, in the procedure for the adoption of a decision to refuse access, the institution must make sure that those reasons exist and refer to them in the decision it makes following that procedure (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 62; of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 53, and of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraph 55).

37 As is apparent in particular from Articles 7 and 8 of Regulation No 1049/2001, the institution is itself obliged to give reasons for a decision refusing a request for access to a document. Such an obligation means that the institution must, in its decision, not merely record the fact that the Member State concerned has objected to disclosure of the document applied for, but also set out the reasons relied on by that Member State to show that one of the exceptions to the right of access provided for in Article 4(1) to (3) of the regulation applies. That information will allow the person who has asked for the document to understand the origin and grounds of the refusal of his request and the competent court to exercise, if need be, its power of review (see judgment of 8 February 2018, POA v Commission (T‑74/16, not published, EU:T:2018:75, paragraph 56 and the case-law cited).

38 On the other hand, according to the case-law regarding Article 4(5) of Regulation No 1049/2001, the institution to which a request for access to a document has been made does not have to carry out an exhaustive assessment of the Member State’s decision to object by conducting a review going beyond the verification of the mere existence of reasons referring to the exceptions in Article 4(1) to (3) of Regulation No 1049/2001 (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 63 and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 54). The institution must, however, check whether the explanations given by the Member State appear to it, prima facie, to be well founded (judgments of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 54, and of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraph 57).

39 To insist on such an exhaustive assessment could lead the institution to which a request for access to a document has been made, after carrying out the assessment, wrongly to communicate the document in question to the person requesting access, notwithstanding the objection, duly reasoned in accordance with paragraphs 35 and 36 above, of the Member State from which the document originated (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 64; of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 55, and of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraph 58).

40 It is also clear from the Court’s case-law that the obligation to carry out a specific and individual examination which stems from the principle of transparency as developed in the case-law does not apply where the request for access concerns a document originating from a Member State, as referred to in Article 4(5) of Regulation No 1049/2001 (see, to that effect, judgments of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraphs 80 to 84, and of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraphs 60 and 61).

41 As regards the scope of the judicial review of the legality of a decision of an institution refusing public access to a document on the basis of one of the exceptions relating to the public interest provided for in Article 4(1)(a) of Regulation No 1049/2001, that institution must be recognised as enjoying a wide discretion for the purpose of determining whether the disclosure of documents relating to the fields covered by those exceptions could undermine the public interest. The review by the Courts of the European Union of the legality of such a decision must therefore be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers (see judgment of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 63 and the case-law cited).

42 Moreover, when an applicant challenges the lawfulness of a decision refusing him access to a document on the basis of one of the exceptions provided for by Article 4 of Regulation No 1049/2001, claiming that the exception relied on by the institution concerned was not applicable to the document requested, the General Court is obliged to order production of the document and to examine it, if it is to ensure the applicant’s judicial protection. By contrast, where an institution refuses to grant access to a document and does so in reliance on reasons which are based on an exception whose applicability is not disputed, there is no ground for maintaining that, in order to assess the lawfulness of those reasons, the General Court is obliged to order, as a matter of course, production of the whole of the document in respect of which access is sought. The General Court may decide, acting within the margin of discretion it enjoys in the assessment of evidence, whether, in a specific case, it is necessary, for the purpose of examining the merits of the reasons on the basis of which an institution has refused access to the document concerned, for that document to be produced before it (see, to that effect, judgment of 28 November 2013, Jurašinović v Council, C‑576/12 P, EU:C:2013:777, paragraphs 26 to 30 and the case-law cited).

43 In the present case, it is apparent that the applicant does not claim before the Court that the exception relied on by the institution in question is not applicable as such to the requested documents, but merely disputes the merits of the arguments put forward by the applicant in the contested decision seeking to establish that the disclosure of those documents would have undermined the interest protected by that exception. Accordingly, in the light of the applicant’s argument under the first plea, which disputes the merits of the arguments put forward in the contested decision which seek to establish that disclosure of the requested documents would have undermined the interest protected by the exception at issue here, and in so far as the nature and content of the requested documents may be assessed in the light of the various documents available to the public concerning the Kingdom of Spain’s RRP (see paragraphs 8 and 9 above), it does not appear necessary for the Court itself to consult, in camera, the documents in question pursuant to Article 91(c), Article 92 and Article 104 of its Rules of Procedure.

44 It is in the light of those preliminary observations that the Court must examine the arguments relating to the refusal of access to three documents originating from the Spanish authorities, on the ground that their disclosure would undermine the protection of the public interest as regards the financial or economic policy of the Kingdom of Spain.

– The obligation on the institution concerned to make sure that reasons exist relating to the opposition and to refer to them in the contested decision

45 In the present case, contrary to what the applicant claims, it is apparent from paragraph 2.1 of the contested decision that the Commission informed it not only that the Kingdom of Spain objected to the disclosure of the requested documents by relying, inter alia, on the exception laid down in the fourth indent of Article 4(1)(a) of Regulation No 1049/2001, according to which access to a document is to be refused where disclosure would undermine the protection of the public interest as regards the financial, monetary or economic policy of the European Union or a Member State, but also what were the various reasons put forward by the Spanish authorities to justify that refusal.

46 The three reasons set out in that respect by the Spanish authorities and reproduced in the contested decision enable the applicant to ascertain the reasons put forward by the Kingdom of Spain for objecting to disclosure of the requested documents. The Commission therefore satisfied itself that there was a statement of reasons relating to the opposition and referred to it in the contested decision.

47 It follows that it cannot be claimed that the Spanish authorities did not state reasons for their position and that the Commission did not set out the reasons relied on in that respect in the contested decision.

48 In that regard, the applicant cannot claim that one of the reasons put forward by the Kingdom of Spain in its opposition, namely the alleged need to ‘ensure an adequate climate and financial stability in view of the structural reforms’, is a ‘smokescreen’. It is sufficiently clear from the various documents available to the public concerning the Kingdom of Spain’s RRP (see paragraphs 8 and 9 above), as well as the explanations provided on that point by the Kingdom of Spain in its intervention, that the implementation of that RRP involves extensive and significant reforms for the Spanish economy, the Kingdom of Spain stating for that purpose, without being contradicted by the applicant, that that plan covers 110 reforms and 102 investments, in respect of which the total financial contribution paid to the Kingdom of Spain will be EUR 69.5 billion.

– The obligation on the institution concerned to verify whether the explanations given by the Member State appear to it to be prima facie well founded

49 In the present case, contrary to what the applicant claims, it is apparent not only from paragraph 2.1 of the contested decision, but also from paragraph 2.2.1 thereof, that the Commission indicated to it that it had verified the explanations given by the Member State in order to justify the application of the exception laid down in Article 4(1)(a) of Regulation No 1049/2001 to the right of access to documents received from a Member State. The Commission also informed the applicant that, for the reasons set out in paragraph 2.2.1 of the contested decision, those explanations appeared to it, at the end of that verification, to be prima facie well founded.

50 The reasoning set out in that regard in the contested decision enables the applicant to know the content and the result of the investigation carried out by the institution concerned.

51 The Commission cannot therefore be criticised for not ensuring that there was a statement of reasons justifying the application of the exception relied on.

– Whether the statement of reasons set out in relation to the prima facie verification of the explanations given is sufficient to justify the application of the exception relied on

52 In the present case, after verification of the explanations given by the Member State as a basis for applying the exception provided for in Article 4(1)(a) of Regulation No 1049/2001, the Commission took the view that:

– ‘the requested documents [had been] drafted by the Spanish national authorities [; that] they include[d] the proposal of the [RRP] of [the Kingdom of] Spain with [the] draft components [which had been] submitted [to it] in April 2021 [; that those] … documents specif[ied] in detail an extensive set of reinforcing reforms and crucial investment projects, concrete timetable of disbursements of non-repayable support, and other specific details about financial planning and policy of [the Kingdom of] Spain’;

– ‘release of the documents at this stage [3 December 2021] could [have] negatively impact[ed] the economic policy of [the Kingdom of] Spain, given the size of the plan on the Gross Domestic Product’;

– ‘disclosing the detailed withheld information would [have] produce[d] serious political implications that could negatively impact the disbursements of the EUR 69.5 billion’;

– ‘public access to these documents [could] lead to interferences and speculations at each step of the negotiation process, and eventually entail risks to financial stability’;

– to illustrate these points, in the context of the implementation of the facility for recovery and resilience, it was incumbent on it, inter alia, to assess whether the investments and reforms included in the RRP contributed effectively to addressing the challenges identified in the European semester framework of economic and social policy coordination, contained measures which supported green and digital transitions effectively and helped to increase growth potential, job creation and social resilience of the Member State concerned;

– ‘taking into account their preliminary nature, it [was] likely that access to the documents would [have lead] to unjustified speculations on the financial policy of the Member State by means of textual comparisons’;

– ‘disclosure [of the documents] would also [have] generate[d] unwarranted pressures on [it] and the other European Union institutions when defining the operational arrangements that [would have] further specifie[d] elements, in particular, for the monitoring and implementation of the plan. Given the preliminary nature and the content of the documents requested, [it] consider[ed] this risk as reasonably foreseeable and not purely hypothetical’.

53 Consequently, the Commission concluded that ‘disclosure of the requested documents would undermine the protection of the public interest as regards the financial and economic policies of [the Kingdom of] Spain’.

54 It is in the light of all those assessments that the various criticisms of some of them by the applicant must be examined.

55 As a preliminary point, it should be noted that the application of the exception laid down in Article 4(1)(a) of Regulation No 1049/2001 must be assessed in the light of the documents requested in the context of the process of implementing the facility for recovery and resilience as regards the Kingdom of Spain. It is in that material and temporal context that the institution to which the request was made was required to verify prima facie the explanations provided as a basis for the application of the exception provided for in Article 4(1)(a) of Regulation No 1049/2001.

56 In that regard, it is apparent that the requested documents consist of the RRP proposal submitted by the Kingdom of Spain in April 2021, the letter accompanying the transmission of the RRP and another letter of May 2021 including new information on certain components of the RRP.

57 It is also apparent that those documents constitute only an initial stage, ‘preliminary [in] nature’ according to the terms used by the Commission in the contested decision, of a process in several stages designed to allow the disbursements of the EUR 69.5 billion which could benefit the Kingdom of Spain at the end of that process. The Commission refers several times in the contested decision to the various methods and specificities relating to the implementation of the recovery and resilience facility.

58 The requested documents therefore precede the outcome of the Commission’s evaluation of the RRP pursuant to Regulation 2021/241 and the Council’s adoption of the proposal for an implementing decision relating to the approval of the positive assessment by the Commission of the RRP of the Kingdom of Spain. It should also be noted, as the Kingdom of Spain states in its objection and the Commission in the contested decision, that the Council Implementing Decision of 13 July 2021, which, according to the applicant, could be regarded as having closed the decision-making process initiated by the RRP proposal submitted by the Kingdom of Spain in April 2021, seeking the adoption of that RRP, is merely a step in the more general process of implementing the recovery and resilience facility as regards the Kingdom of Spain.

59 The financial and economic impact of the implementation of the facility for recovery and resilience as regards the Kingdom of Spain on that country does not end on the date of adoption of the Council Implementing Decision of 13 July 2021. The Commission states in that regard that the RRP, which was the subject of that decision, may still be updated in order to take account of the updated maximum contribution, or of an amendment, where the agreed milestones and targets are no longer achievable. The Commission also states that, at the time when the defence was lodged, apart from the payment of pre-financing of 13% not subject to the fulfilment of milestones and targets, it adopted only one payment decision.

60 Thus, it is apparent from the file that only 27% of the financial contribution granted to the Kingdom of Spain was paid out. The remaining disbursements, which are to be made by 31 December 2026, are subject to the rules on payments, suspension and termination of agreements regarding financial contributions and loans, set out in Regulation 2021/241. In order to receive those disbursements, the Member State concerned must submit to the Commission a reasoned request for payment, which is to account for the completion of the milestones and targets set out in the RRP. That request will then be assessed by the Commission, which will take into account the opinion of the Economic and Financial Committee before reaching a decision.

61 In that context, first, the Commission was entitled to take account of the information, highlighted by the Kingdom of Spain in its objection, according to which, first, the consequences of the RRP for the financial and economic policy of that Member State did not end on the date of adoption of the implementing decision of 13 July 2021 and, secondly, those consequences, linked to the implementation of the RRP adopted at the end of the decision-making process defined by Regulation 2021/241, were the subject of permanent negotiations between the Commission and the Kingdom of Spain, in particular as to whether the milestones and targets set out in the RRP had been met, in the context of the general implementation process for the recovery and resilience facility concerning that Member State.

62 Furthermore, it cannot be disputed, as the Kingdom of Spain correctly submits before the Court, that the RRP of that Member State concerns a vast body of reforms and investments, which concern significant and sensitive aspects of the development of the Spanish economy, the implementation of which will require several years and significant discussions with the various interested parties.

63 Secondly, in those circumstances, the Commission was entitled to take the view that it was reasonably foreseeable and not purely hypothetical that disclosure of the requested documents would undermine, by reason of their preliminary nature and their content, the protection of the public interest relied on by the Kingdom of Spain.

64 As the Commission states in the contested decision, disclosure of such documents risked undermining the progress of the forthcoming negotiations on the various stages of implementation of the RRP, whether it was the adoption of necessary reforms or whether the milestones and targets set out in the RRP were fulfilled.

65 By way of example, first, it was reasonably foreseeable, as the Kingdom of Spain states before the Court, that a textual comparison between the 23 component version (new public policies for a dynamic, resilient and inclusive labour market) and 30 (pensions) of the RRP proposed by the Kingdom of Spain in April 2021 and May 2021 and the version of those components which had been the subject of a positive assessment by the Commission would have led to speculation as to the financial policy of the Kingdom of Spain or would have been liable to give rise to interference and speculation at each stage of the negotiation process concerning the implementation of the RRP.

66 Secondly, in the same vein, as the Commission and the Kingdom of Spain submit in order to illustrate the content of the contested decision, it was also reasonably foreseeable that disclosure of the exchanges between the Member State concerned and the Commission could have been used in order to analyse whether the agreed milestones and targets were met. Disclosure of the requested documents would then have compromised the Kingdom of Spain’s negotiating position in its future applications for payment of the remaining financial contribution, which risked subjecting it to external pressure.

67 Furthermore, as is also apparent from the contested decision, the economic importance of the RRP for the Kingdom of Spain and its political implications were to be taken into consideration when assessing the scope of the public interest represented by the proper conduct of the negotiations still to be held in that regard.

68 In such a situation, it was reasonably foreseeable, as the Commission states in the contested decision in the light of the explanations put forward by the Kingdom of Spain, that disclosure of the requested documents was likely to open the way to speculation or interference with the implementation of the RRP, thus creating unjustified difficulties for it in the negotiations which were still to take place.

69 In that regard, the applicant is not convincing when it observes that documents other than those requested were disclosed to the public. The documents to which it refers on that point do not concern documents of a preliminary nature, but documents which are similar to the RRP of the Kingdom of Spain, which is available to the public.

70 It follows from the foregoing that the Commission cannot be criticised for not having verified whether disclosure of the requested documents was, prima facie, likely to undermine, in a reasonably foreseeable and not purely hypothetical manner, the public interest as regards the financial and economic policy of the Kingdom of Spain, which is the subject of the exception provided for in Article 4(1)(a) of Regulation No 1049/2001.

72 In the light of that conclusion, it is therefore unnecessary to examine the merits of the third plea and the fourth plea, which concern the other exception relied on in order to refuse access to all the requested documents, since the first exception relied on is sufficient to justify such a refusal.

73 Although, according to the case-law, the same document may indeed be covered by one or several exceptions provided for by Regulation No 1049/2001 (judgments of 10 September 2008, Williams v Commission, T‑42/05, not published, EU:T:2008:325, paragraph 126, and of 28 May 2020, ViaSat v Commission, T‑649/17, not published, EU:T:2020:235, paragraph 125), it is apparent from the examination of the present plea that the Commission was right to consider, in the light of the explanations put forward in the Kingdom of Spain’s opposition, that the disclosure of the required documents would undermine the public interest as regards the financial or economic policy of a Member State within the meaning of the fourth indent of Article 4(1)(a) of Regulation No 1049/2001.

74 As that exception in itself justifies non-disclosure of the requested documents, since the applicant does not raise any complaint in that regard as to the full or partial extent of such a refusal, for reasons of procedural economy, it is unnecessary to examine whether the applicant’s complaints concerning the exception relating to the protection of the ongoing decision-making process which are the subject of the third and fourth pleas are well-founded (see, to that effect, judgment of 28 May 2020, ViaSat v Commission, T‑649/17, not published, EU:T:2020:235, paragraph 127 and the case-law cited).

The second plea in law, alleging infringement of Article 4(1)(b) of Regulation No 1049/2001 on account of an improper application of the exception relating to the protection of privacy and the integrity of the individual

75 Under that plea, the applicant claims that, if it transpires that the exceptions relied on in order to refuse access to the full content of the requested documents did not apply, the Commission would then be able to grant partial access to requested documents 2 and 4 by removing the references to the sensitive personal information contained in those documents.

76 In so far as, as was concluded above as a result of the first plea in law, the contested decision is well founded in the light of the application of the exception relating to the protection of the public interest as regards the financial and economic policy of a Member State, there is therefore no need to examine such a hypothesis and to rule on the merits of the second plea in law.

77 In any event, it should be noted that, as the applicant and the Commission state, paragraph 2.3 of the contested decision refers to the Commission’s assessment that the sensitive personal information contained in requested documents 2 and 4, including ‘names, surnames, functions, telephone numbers and electronic addresses of representatives of Spanish national authorities as well as Commission officials not holding any senior management post’, was protected under the exception provided for in Article 4(1)(b) of Regulation No 1049/2001.

78 It is also apparent from the contested decision, as the applicant acknowledges in its arguments in that regard, that the abovementioned assessment concerns only the sensitive personal information at issue here and not the rest of requested documents 2 and 4.

79 Therefore, the Commission cannot be criticised for having stated, so far as this point is relevant, in the contested decision that, if the other exceptions set out in Article 4 of Regulation No 1049/2001 did not apply, it would still be entitled to remove references to sensitive personal information.

81 In the light of all the foregoing considerations, the action must be dismissed in its entirety, since, as is apparent from the examination of the first plea, the contested decision is well founded in the light of the exception relating to the protection of the financial and economic policy of a Member State.

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, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter.

83 Under Article 138(1) of the Rules of Procedure, a Member State which has intervened in the proceedings is to bear its own costs. Consequently, the Kingdom of Spain must bear its own costs.

2. Orders Asesores Comunitarios, SL to bear its 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) >> Asesores Comunitarios v Commission (Access to documents - Documents relating to the recovery and resilience plan submitted by a Member State to the Commission - Judgment) [2023] EUECJ T-77/22 (15 February 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T7722.html Cite as: [2023] EUECJ T-77/22, ECLI:EU:T:2023:69, EU:T:2023:69

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