OPINION OF ADVOCATE GENERAL
Kokott
delivered on 3 March 2011 (1)
Case C‑506/08 P
Kingdom of Sweden
supported by
Kingdom of Denmark,
Kingdom of the Netherlands and
Republic of Finland
v
European Commission
supported by
Federal Republic of Germany,
French Republic and
United Kingdom of Great Britain and Northern Ireland
(Appeal – Access to documents – Regulation (EC) No 1049/2001 – Refusal of access – Exception relating to the protection of the decision-making process – Exception relating to the protection of court proceedings and legal advice – Overriding public interest in disclosure – Documents relating to Commission decisions on concentrations – Acquisition of First Choice plc by Airtours plc)
I – Introduction
1. Article 1(2) and Article 10(3) TEU states that in the European Union decisions are to be taken as openly as possible. Thus, there is the right of access to documents under Article 15(3) TFEU (formerly Article 255 EC), Article 42 of the Charter of Fundamental Rights and 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. (2)
2. But is the Commission required to disclose internal discussions regarding the consequences of a defeat before the Courts of the European Union, in Airtours? (3) Or would such transparency undermine the Commission’s decision‑making process? This question arises in the present appeal brought against the judgment in Case T-403/05. (4)
3. The Commission, supported by Germany, France and the United Kingdom, is relying on the protection of internal deliberations and on the protection of legal advice to justify the confidential treatment of those discussions. On the other hand, Sweden, together with Denmark, the Netherlands and Finland, wishes to permit an exception to the principle of transparency only where it is demonstrated that those interests are specifically undermined.
II – Legislative framework
4. Regulation No 1049/2001 defines the principles, conditions and limits for the right of access to the documents of the European Union’s institutions laid down by Article 255 EC.
5. Article 2(1) of that regulation provides:
‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.’
6. Article 4(2) and (3) of Regulation No 1049/2001 states:
‘2. The institutions shall refuse access to a document where disclosure would undermine the protection of:
– …
– court proceedings and legal advice,
– the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure.
3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.’
7. Reference should also be made to the procedural law relating to the control of concentrations. Article 18(3) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (5) provides for a right of access to the file:
‘The Commission shall base its decision only on objections on which the parties have been able to submit their observations. The rights of the defence shall be fully respected in the proceedings. Access to the file shall be open at least to the parties directly involved, subject to the legitimate interest of undertakings in the protection of their business secrets.’
8. However, Article 17(3) of Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (6) excludes internal documents of the Commission from the right of access to the file.
‘The right of access to the file shall not extend to confidential information, or to internal documents of the Commission or of the competent authorities of the Member States. The right of access to the file shall equally not extend to correspondence between the Commission and the competent authorities of the Member States or between the latter.’
9. The precursor provision applicable to the Airtours/First Choice case, Article 17(1) of Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, time-limits and hearings provided for in Regulation (EEC) No 4064/89, (7) had a similar wording:
‘Information, including documents, shall not be communicated or made accessible in so far as it contains business secrets of any person or undertaking, including the notifying parties, other involved parties or of third parties, or other confidential information the disclosure of which is not considered necessary by the Commission for the purpose of the procedure, or where internal documents of the authorities are concerned.’
III – Facts of the case
10. The following facts are evident from the judgment of the Court of First Instance (now ‘the General Court’).
11. By the judgment in Case T‑342/99 Airtours v Commission, (8) the General Court set aside a decision taken by the Commission in its capacity as a merger control authority, by which it prohibited the travel company Airtours plc, now MyTravel Group plc (‘MyTravel’), from taking over the competing undertaking First Choice.
12. Following the Airtours judgment, the Commission established a working group comprising officials of the Directorate-General for Competition (‘DG Competition’) and the legal service in order to consider whether it was appropriate to bring an appeal against that judgment and to assess the implications of that judgment for the procedures for the control of concentrations or in other areas. The report of the working group was presented to the Member of the Commission responsible for competition on 25 July 2002, that is to say, prior to the expiry of the period allowed for bringing an appeal. No appeal was brought.
13. On 18 June 2003, MyTravel brought an ultimately unsuccessful (9) action for damages seeking compensation for the loss it suffered by reason of the Commission’s handling and assessment of the concentration between Airtours and First Choice.
14. By letter of 23 May 2005, whilst that action was still pending, the applicant made a request to the Commission for access to a number of documents pursuant to Regulation No 1049/2001. The documents referred to were the report of the working group (‘the report’), the documents relating to the preparation of that report (‘the working papers’) and the documents contained in the file relating to the Airtours/First Choice case on which the report was based or which were referred to in it (‘the other internal documents’).
15. By letter of 5 September 2005 (D(2005) 8461) (‘the first decision’) the Commission gave its decision on the report and the working papers and by letter of 12 October 2005 (D(2005) 9763) its decision (‘the second decision’) on the other internal documents.
16. In the first decision, the Commission invoked inter alia the second subparagraph of Article 4(3) of Regulation No 1049/2001 as a basis for its refusal to grant access to the whole of the report and to certain of the working papers (points I.3 and II and the annex entitled ‘Inventory of the “Working Papers”’). It stated that the report was an internal document which reflected the assessment of its services of the possibility of bringing an appeal against the Airtours judgment and of reviewing its investigation procedures in the area of concentrations. According to the Commission, disclosure of the report to the public would seriously undermine its decision-making process, since the freedom of the authors of such documents would be threatened if, when drafting them, they had to take into account the possibility of their opinions being disclosed to the public, even after a decision had been taken on the basis of their assessments.
17. In the second decision, the Commission relied on the second subparagraph of Article 4(3) of Regulation No 1049/2001 and the third indent of Article 4(2) of the regulation as a basis for its refusal to grant access to the following documents:
– the drafts of the decision taken under Article 6(1)(c) of Regulation No 4064/89, the statement of objections and the final decision in the Airtours/First Choice case (‘the draft texts’) (point II.6 of the second decision and the documents mentioned in section 6 of the first annex to that decision), on the basis that these were internal documents of a preparatory nature, disclosure of which to the public would seriously undermine the decision-making process in the area of the control of concentrations;
– the notes from the Director General of DG Competition to the Member of the Commission responsible for competition (‘the notes to the Commissioner’) (point II.1 of the second decision and documents 1.1 to 1.8 in the first annex to that decision) in so far as those notes contained opinions for internal use in preparation for the decision in Airtours/First Choice and their disclosure to the public would curtail the capacity of DG Competition to express its views and the capacity of the Members of the Commission to adopt a well-reasoned decision. The Commission stated that that analysis was not affected by the fact that the decision had already been adopted, since disclosure of those documents to the public could still affect the Commission’s decision-making process as regards similar cases (for example, the refusal to communicate the statement of objections in the EMI/Time Warner case allowed the Commission not to be subject to external pressures when it had to deal with the BMG/Sony case, which concerned the same sector);
– the notes from DG Competition to other Commission services, including the legal service, which supplied and asked for the advice of the addressees on the draft texts (‘the notes to the other services’). The Commission made a distinction, in that regard, between the copies of those notes which were sent to the legal service (documents 2.1 to 2.5) and the copies which were sent to the other Commission services (documents 4.1 to 4.5). As regards the copies sent to the legal service, the Commission stated that those documents were closely connected with the legal advice which was provided on the basis of them and that their disclosure would have the result of revealing essential parts of that advice; such disclosure would seriously undermine the Commission’s decision-making process (point II.2 of the second decision). As regards the copies sent to the other Commission services, the Commission stated that those documents were drawn up for the purposes of internal consultations and that they illustrated the collective nature of the decision-making process. The Commission indicated that it was therefore necessary to protect the decision-making process from being seriously undermined, which would be the case if such information were to be disclosed to the public (point II.4 of the second decision);
– the notes from other Commission services supplied in reply to the five notes from DG Competition referred to above, setting out the views of the services concerned of the draft texts (‘the notes in reply from the services other than the legal service’) (documents 5.1 to 5.10). The Commission stated that those notes formed part of the inter- and intra-service consultation which was indispensable to its decision-making process. It stated that the capacity of those services to express their views was fundamental to the control of concentrations and that that capacity would be curtailed if, when drafting that type of note, the services concerned had to take account of the possibility that their opinions could be disclosed to the public, even after the case had been closed (point II.5 of the second decision).
18. In the second decision, the Commission also invoked the application of the second indent of Article 4(2) of Regulation No 1049/2001 as regards the five notes from the legal service in reply to the five notes from DG Competition referred to above (‘the notes in reply from the legal service’) (point II.3 and documents 3.1 to 3.5). Access to those documents was refused by the Commission because they set out the advice of the legal service on the draft texts. The Commission stated that disclosure of that legal advice could give rise to uncertainty as regards the lawfulness of decisions in the area of the control of concentrations, which would have a negative effect on the stability of the Community legal order and the proper functioning of the Commission. (10) It stated that each of the notes in reply from the legal service had been subject to individual examination and that the fact that no partial access could be granted did not indicate that the protection of legal advice had been used as a blanket exception.
19. In addition, the Commission referred in the second decision to the special situation of certain internal documents, to which partial or total access was refused. These included, in particular, the report of the Hearing Officer in the Airtours/First Choice case, the note from DG Competition to the Advisory Committee, and a note to file on a site visit to First Choice.
20. Lastly, the Commission stated that the exceptions referred to above applied unless there was an overriding public interest in the disclosure of the document. It stated that, in the present case, MyTravel had not put forward any arguments that would establish an overriding public interest. According to the Commission, the prevailing interest in this case lay instead in protecting its decision-making process in similar cases, as well as its interest in protecting legal advice.
21. MyTravel brought an action against those decisions. By the contested judgment, the General Court granted the action in respect of one document (paragraph 1 of the operative part), but it dismissed the action as to the remainder (paragraph 2 of the operative part). The Commission was able to rely on the protection of internal deliberations and the protection of legal advice.
22. The Kingdom of Sweden brought the present appeal against the judgment of the General Court. That Member State claims that the Court should:
1. set aside paragraph 2 of the operative part of the judgment of the Court of First Instance of 9 September 2008 in Case T-403/05;
2. annul the Commission Decision of 5 September 2005 (D(2005) 8461), in accordance with the form of order sought by MyTravel Group plc in the Court of First Instance, in so far as concerns the refusal of access to the Commission’s report and other working documents;
3. annul the Commission Decision of 12 October 2005 (D(2005) 9763), in accordance with the form of order sought by MyTravel Group plc in the Court of First Instance, in so far as concerns the refusal of access to the Commission’s other internal documents, and;
4. order the Commission to reimburse the Kingdom of Sweden with its legal costs at the Court of Justice.
23. The Commission contends that the Court should:
1. dismiss the appeal, and;
2. order the appellant to pay the costs.
24. By order of 2 June 2009, the President of the Court of Justice granted the Kingdom of Denmark, the Kingdom of the Netherlands and the Republic of Finland leave to intervene in support of the forms of order sought by Sweden and granted the Federal Republic of Germany, the Republic of France and the United Kingdom of Great Britain and Northern Ireland leave to intervene in support of the forms of order sought by the Commission.
25. The participants in the proceedings submitted written observations and, with the exception of the Netherlands, Germany and the United Kingdom, also took part in the hearing on 7 October 2010.
IV – Assessment
26. The broad lines of the case-law on access to the documents of the institutions can be summarised as follows.
27. According to recital 1 in the preamble to Regulation No 1049/2001, that regulation is based on the second subparagraph of Article 1 EU, under which the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 in the preamble to Regulation No 1049/2001, the right of public access to documents of the institutions is related to the democratic nature of those institutions. To that end, the regulation is intended, as is apparent from recital 4 in its preamble and from Article 1, to give the fullest possible effect to the right of public access to documents of the institutions. (11) That right has now been recognised as a citizen’s right in Article 42 of the Charter of Fundamental Rights.
28. However, that right is none the less subject to certain limitations based on grounds of public or private interest. More specifically, and in reflection of recital 11 in the preamble thereto, Article 4 of Regulation No 1049/2001 provides that the institutions are to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision. Thus, if an institution decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception – among those provided for in Article 4 – upon which it is relying. (12)
29. Of course, since they derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly. Nevertheless, the institution concerned may base its decisions in that regard on general presumptions which apply to certain categories of document, as considerations of a generally similar kind are likely to apply to applications for disclosure which relate to documents of the same nature. (13)
30. The General Court recognised those principles in the contested judgment and they are not called into question in the present case.
31. Sweden bases its appeal on the following four pleas in law: The General Court erred in law in applying the exception relating to the protection of internal deliberations (see under A) and the exception relating to the protection of legal advice (see under B). The examination of whether there is an overriding interest in the disclosure of the document was also deficient (see under C). Lastly, it failed to give sufficient consideration to whether the Commission granted due access to parts of the documents (see under D). On the other hand, there is no need to consider the protection of investigations, on which the Commission also based its decisions.
A – The protection of internal deliberations
32. The first plea in law concerns the protection of internal deliberations after the procedure in question has been concluded.
33. The first subparagraph of Article 4(3) of Regulation No 1049/2001 permits access to be refused to documents which relate to a matter where the decision has not been taken by the institution. Following on from that, under the second subparagraph of that provision, access to opinions for internal use as part of deliberations and preliminary consultations within the institution concerned is to be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
34. It is common ground that the documents in question are opinions for internal use as part of deliberations and preliminary consultations within the Commission.
35. The General Court essentially recognised two risks put forward by the Commission as seriously undermining decision-making processes: self-censorship and a shift to informal deliberations. I will now examine those aspects in detail.
36. In the first decision, the Commission took the view that disclosure of the report to the public would seriously undermine its decision-making process, since the freedom of the authors of such documents would be threatened if, when drafting them, they had to take into account the possibility of their opinions being disclosed to the public, even after a decision had been taken on the basis of their assessments. The other documents to which that decision relates are in preparation for the report and are therefore protected to an even greater extent.
37. In the second decision, the Commission argued inter alia that disclosure of the documents would curtail the capacity of DG Competition to express its views and would jeopardise the capacity of the Members of the Commission to adopt a well-reasoned decision.
38. The General Court considers that position to be justified. In paragraph 48 of the contested judgment it explains that the working group’s mandate comprised analysis, reflection and criticism. These were not legislative tasks, as the Court states in paragraph 49, but purely administrative functions. Disclosure of the documents would allow Commission measures to be compared with the recommendations of the working group (paragraph 51). However, the Commission must be free to depart from the recommendations made by its services (paragraph 53). If it were possible to disclose such documents, in future officials would not express any positions which might jeopardise the decision‑making freedom of the addressees of the report. The quality of the deliberations would thus be at stake (paragraph 52). At the same time, it appears logical and probable that the Member of the Commission responsible for competition would be induced to cease making requests for the written, and potentially critical, views of his advisers. Merely to hold oral and informal discussions, which would not require the drawing up of a ‘document’ within the meaning of Article 3(a) of Regulation No 1049/2001, would cause significant damage to the effectiveness of the Commission’s internal decision-making process, especially in areas in which it is required to carry out complex legal, factual and economic assessments and to examine particularly large amounts of documents (paragraph 54).
39. The General Court describes possible implications of access to the documents in question, but Sweden rightly objects that those presumptions are too general. As the General Court acknowledges in its recent case-law, (14) they do not ultimately justify the contested judgment and the challenged Commission decision. This is apparent if one considers, in the light of Article 4(3) of Regulation No 1049/2001, what can actually constitute a serious undermining of decision-making processes.
1. Article 4(3) of Regulation No 1049/2001
40. It is clear from the wording of Article 4(3) of Regulation No 1049/2001 that particular caution must be exercised in applying the two exceptions to the right of access laid down therein. It is not sufficient for disclosure of documents to undermine the institution’s decision-making process; it must be seriously undermined.
41. The exceptions under Article 4(3) of Regulation No 1049/2001 therefore differ from the exceptions contained in the first two paragraphs, under which any undermining is sufficient, even if it is not ‘serious’. Such exceptions must be interpreted strictly. (15) Consequently, the principle of strict interpretation takes on even greater importance with regard to the application of Article 4(3) of Regulation No 1049/2001.
42. This finding is confirmed by the drafting history of Article 4(3) of Regulation No 1049/2001.
43. The Commission had proposed excluding texts for internal use, such as discussion documents, opinions of departments, and informal messages, from the scope of Regulation No 1049/2001. (16) It thereby intended to allow the institutions the necessary ‘space to think’. (17) Had that proposal been accepted, it would have been perfectly right to refuse access to the documents at issue.
44. Because the legislature declined, however, to exclude those documents from the scope of Regulation No 1049/2001, they are to be disclosed in principle like all other documents. (18) Furthermore, access is to be granted on an even more generous basis because the exception relating to the protection of internal deliberations is worded more strictly than the other exceptions. The legislature therefore wished to protect the ‘space to think’ less strongly than other interests.
45. Moreover, the protection of decision-making processes is not likely to be increased in future. In the current procedure for the amendment of Regulation No 1049/2001, the Commission has proposed only editorial amendments of Article 4(3), (19) whilst Parliament’s rapporteur is pushing for a much more generous disclosure of the decision-making processes. (20)
2. Serious undermining of decision-making processes
46. But what does it mean, against this background, for decision-making processes to be seriously undermined? Is it sufficient that greater caution might be exercised in the internal deliberations or preference may be given to informal procedures which leave few written trails, if any at all?
47. The starting point for the answer to this question must be the second recital in the preamble to Regulation No 1049/2001. It states that openness guarantees, among other things, that the administration enjoys greater legitimacy and is more accountable to the citizen in a democratic system.
48. Union citizens are therefore intended to understand how and for what reasons the administration takes its decisions. It is one of the aims of Regulation No 1049/2001 to provide citizens with information on positions which the institution in question has discussed internally and subsequently rejected. They are thus able to form an opinion regarding the quality of the administration’s action, in particular its decision-making processes, participate in the public discussion on the administration’s action and possibly be given guidance in making their democratic vote.
49. The fears expressed by the Commission and by the General Court describe possible strategies to circumvent that accountability. Rather than providing citizens with information about the administration’s action, attempts could be made to ensure that such information does not actually come into being or at least is not documented.
50. There is undoubtedly a certain risk that the institutions or individual officials could employ such strategies. However, the interpretation of Union legislation cannot be based on the fear that those provisions might be circumvented by the institutions. If such fears were well-founded, measures would have to be taken to prevent circumvention.
51. Furthermore, in addition to the risks of self-censorship and a shift to informal forms of deliberation, openness also creates incentives to prepare decisions particularly carefully and thoroughly in order to avoid subsequent criticism.
52. It is conceivable that the deliberations will be more cautious, but the possibility of subsequent disclosure can also lead to particularly honest or critical opinions. It is much more difficult for decision-makers to disregard a well-reasoned position of staff or other services without persuasive arguments if that position is made public.
53. A shift to informal forms of deliberation is likewise not absolutely attractive. Mention must be made, first of all, of the quality of the administration’s action which – as the General Court rightly states – could suffer if deliberations were no longer recorded in writing. However, all participants in the administration have an interest in taking high-quality decisions, otherwise there will be all the more reason for criticism.
54. However, irrespective of the quality of the individual decision, the impression may be created that the intention is to hide something or at least that insufficient preparations have been made for the decision if no documents exist which could be disclosed upon request. (21) If there are only documents which do not reveal any consideration of different opinions, the qualification of the advisers may be called into question. Openness can thus also help to ensure that deliberations are formalised, documented and therefore comprehensible, in order to avoid criticism and to justify decisions.
55. The conflicting interests described above also show that the risks of self‑censorship and a shift to informal forms of deliberation cannot constitute a reasonably foreseeable serious undermining of deliberation processes, but are merely hypothetical. Purely hypothetical undermining cannot justify reliance on an exception. (22)
56. Further specific evidence is therefore needed to show in the case at issue that there are particular, i.e. atypical, risks of openness. Such risks could, for example, emanate from the fact that a case is particularly controversial and, as a result, the relevant staff of the institution concerned have grounds to fear specific detrimental effects if their opinions were known.
57. It must therefore be examined whether the Commission relied on relevant circumstances in the present case. In this regard a distinction must be drawn between, on the one hand, the documents or parts of documents which relate exclusively to the Airtours case (see under 3) and, on the other, the opinions regarding the implications of the Airtours judgment for the procedures for the control of concentrations or in other areas (see under 4.).
3. The documents in the Airtours case
58. The documents in the Airtours case are documents in preparation for the Airtours/First Choice decision, including the report of the Hearing Officer, (23) the note to the Advisory Committee, (24) and documents produced after the Airtours judgment in preparation for the decision on further action to be taken in that case. The refusal to disclose those documents was the subject of the two Commission decisions.
59. The assumption that the decision-making process is seriously undermined is based, first, on the view that the case concerns administrative activities in the area of the control of concentrations (see under a) and, second, on the implications for other procedures for the control of concentrations (see under b).
a) The transparency of administrative activities, in particular in the area of the control of concentrations
60. In paragraph 49 of the contested judgment, the General Court states that the documents concern the Commission’s administrative activity. This is also stressed in the appeal proceedings by the Commission and Germany.
61. According to the recent case-law of the Court of Justice, administrative activities do not require the same breadth of access to documents as the legislative activities of an EU institution. (25) Because laws have general validity, there is naturally a greater public interest in their deliberation than in preparations for decisions taken by the administration on individual cases. In addition, because the administration’s scope for action is defined and limited by law, public participation and public scrutiny are also not needed to the same extent.
62. In this respect the General Court rightly states that the interest of the public in obtaining access to a document does not carry the same weight in the case of a document drawn up in an administrative procedure intended to apply rules governing the control of concentrations or competition law in general, as in the case of a document relating to a procedure in which the Community institution acts in its capacity as legislator.
63. This does not mean, however, that access to documents is ruled out in the field of administrative activities. Regulation No 1049/2001 is intended to create even greater transparency in legislation, but expressly provides, under Article 2(3), for access to documents in all areas of activity of the European Union. The second recital in the preamble to Regulation No 1049/2001 stresses that openness guarantees that the administration – not only the legislature – enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Even the Court of Justice is now subject to the obligations of transparency under Article 15(3) TFEU when exercising its administrative tasks. (26)
64. Specifically with regard to the protection of internal deliberations, Article 4(3) of Regulation No 1049/2001 does not distinguish between administrative and legislative activities. Consequently, it is not possible to make sweeping assumptions in respect of administrative activities as to whether decision-making processes have been seriously undermined.
65. It must nevertheless be acknowledged that ongoing administrative procedures merit greater protection. Where a decision has not yet been taken, there is an increased risk that access to internal documents relating to the procedure in question will have detrimental effects. Such information can be used by interested parties to exert influence selectively, which may in particular adversely affect the quality of the final decision.
66. Furthermore, administrative procedures, especially in the area of the control of concentrations, are subject to strict time-limits, compliance with which would be jeopardised if the Commission was required to deal with reactions to its internal communications in the course of the procedure.
67. Consequently, it must be ensured, as in court proceedings, that administrative procedures also ‘take place in an atmosphere of total serenity’. (27) It is necessary to avoid exposing administrative activities to external pressure, albeit only in the perception of the public, which would disturb the serenity of the proceedings. (28)
68. In procedures for the control of concentrations, the right of access to the file under Article 17(3) of Regulation No 802/2004 does not therefore also extend to internal documents of the Commission. (29) This could also be inferred indirectly from Article 17(1) of Regulation No 447/98, which was applicable to the Airtours/First Choice case, as it excluded internal documents of the authorities, including the Commission, from the right of access to the file.
69. Account must be taken of that fact for the purposes of interpreting the exception laid down by Article 4(3) of Regulation No 1049/2001. If those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to the internal documents of the Commission, the restriction of access to the file in procedures for the control of concentrations would be undermined. (30)
70. However, these considerations relating to administrative activities and in particular the procedural rules governing the control of concentrations can no longer apply after the procedure in question has been definitively concluded, that is to say if the final decision can no longer be judicially challenged. As is shown by Article 18(3) of Regulation No 139/2004, the right of access to the file in procedures for the control of concentrations is a corollary of the rights of the defence. (31) If a decision can no longer be judicially challenged, the rights of the defence in relation to that decision are no longer relevant.
71. Consequently, it cannot be inferred from the rules governing the right of access to the file in procedures for the control of concentrations that after the definitive conclusion of the procedure, access to internal documents would seriously undermine the Commission’s decision‑making process.
72. However, the fundamental considerations relating to the protection of an ongoing decision-making process – undisturbed decision-making (32) – also no longer apply after the procedure has been concluded. That decision-making process can no longer be influenced using internal documents. (33) In addition, as has already been explained, the abstract risks of self-censorship and a shift to informal forms of deliberation do not justify a refusal to disclose internal documents after a procedure has been concluded in the absence of particular evidence of an increased risk in the specific case. (34)
73. In the present case, the procedure relating to the Airtours/First Choice merger was definitively concluded when the period within which the Commission could bring an appeal against the Airtours judgment expired, i.e. long before the request for access to documents. In this respect the present case differs from Technische Glaswerke Ilmenau, where the aid procedure to which the contested documents related was definitively concluded only long after the Commission decision on the request for access. (35)
74. The General Court rightly states in paragraph 45 of the contested judgment that the protection of decision-making processes is still possible even after the decision in question has been taken. However, as Sweden points out, there is much less need to protect the decision-making process after the decision than before.
75. Whilst the interest in protecting decision-making processes diminishes after the decision, the interest in the disclosure of information about the decision‑making process increases. If there is no transparency during a decision-making process, the administration’s accountability to the citizens can only be increased if transparency is created at least retrospectively. Further delays would make it largely impossible to establish accountability for the decision-making process. They would therefore require special justification.
76. This is also evident from Article 4(3) of Regulation No 1049/2001. The first subparagraph of Article 4(3), which applies before the decision, covers more documents than the second subparagraph, which is applicable after the decision. Before the decision, all documents are covered which are drawn up by an institution for internal use or received by an institution, but after the decision only documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned.
77. Accordingly, the fact that internal opinions in procedures for the control of concentrations are to be attributed to the Commission’s administrative activities no longer justifies a refusal to disclose them after the procedure has been definitively concluded.
b) Undermining of other procedures
78. With regard to the protection of a concluded procedure for the control of concentrations, however, the Commission states in the second decision that the information could seriously undermine the decision‑making process in similar procedures for the control of concentrations. The General Court accepted this argument in paragraphs 96 and 98 to 100 of the contested judgment.
79. In paragraph 100 of the contested judgment, the General Court states in particular that it appears reasonable to believe that such documents could be used – even though they do not necessarily represent the Commission’s definitive position – to influence the position of its services, which are entitled to be kept free and independent from all external pressures, in the examination of similar cases involving the same sector of activities or the same economic concepts.
80. It is not clear, however, how those documents can be used to exert unjustified pressure in parallel cases.
81. Where those documents support the decision taken in the original case, they can only be used to highlight a consistent decision-making practice. They would not, however, have any particular additional importance in comparison with the published decision.
82. If the arguments contained in internal documents depart from the published decision, it should easily be possible to reject them by referring to that decision and its grounds.
83. Such documents can exert pressure only if they contain arguments which were not refuted on good grounds in the published decision. However, that would be a deficiency in the earlier decision which could be perfectly validly invoked against the Commission. There is no reason to allow it to continue to ignore compelling arguments in other similar decisions.
84. It is certainly not inconceivable that specific cases may exist which are so closely interconnected that the internal documents relating to one case could seriously undermine the decision on the other case. However, in the present case the Commission does not cite any evidence in support of such a close connection, which is also unlikely because when the decision was taken on the request for access to documents five years had passed since the original Airtours/First Choice decision.
c) Interim conclusion
85. The General Court therefore erred in law when it concurred with the Commission and recognised as lawful the refusal of access to the documents relating to the Airtours case on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001.
4. The opinions regarding the implications of the Airtours judgment for the control of concentrations
86. The first Commission decision also concerned the parts of the report containing opinions regarding the implications of the Airtours judgment for the procedures for the control of concentrations or in other areas, and the relevant preparatory documents.
87. This information also concerns the administrative activities of the Commission in relation to the control of concentrations, although the considerations put forward above can justify a refusal of access even less than in the case of the documents relating to the Airtours case. It was not a matter of a specific administrative procedure, but of the assessment of the implications of the Airtours judgment for the control of concentrations in general. Accordingly, this is not a typical administrative activity, but the development of policy or strategy. Under Article 12(3) of Regulation No 1049/2001, such documents, like legislative documents, should where possible be made directly accessible.
88. The contested judgment therefore also constituted an error in law in respect of those documents and parts of documents.
B – The confidentiality of the opinions of the legal service
89. Furthermore, Sweden objects to the application of the second indent of Article 4(2) of Regulation No 1049/2001. Under that provision, the institutions must refuse access to a document where disclosure would undermine the protection of court proceedings and legal advice unless there is an overriding public interest in disclosure.
90. In the second decision, the Commission invoked that exception as regards five notes from the legal service in reply to the five notes from DG Competition. Access to those documents was refused by the Commission because they set out the advice of the legal service on the draft decisions. The Commission took the view that disclosure of that legal advice could give rise to uncertainty as regards the lawfulness of decisions in the area of the control of concentrations, which would have a negative effect on the stability of the Community legal order and the proper functioning of the Commission.
91. These arguments have already been rejected by the Court, in Turco, as regards legal opinions in the field of legislation: it is precisely openness that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole. Furthermore, the risk that doubts might be engendered in the minds of European citizens as regards the lawfulness of an act adopted by the Community legislature because the Council’s legal service had given an unfavourable opinion would more often than not fail to arise if the statement of reasons for that act was reinforced, so as to make it apparent why that unfavourable opinion was not followed. (36)
92. These considerations apply not only to legislation, but also in principle to administration. In the case of administrative activities, it may be necessary, for the reasons stated above, to protect ongoing procedures, (37) but this interest also no longer holds after the definitive conclusion of the procedure in question.
93. In paragraphs 124 to 127 of the contested judgment, the General Court relies on additional aspects in order to uphold the Commission’s decision. This expansion of the Commission’s arguments by the General Court is questionable, but no complaint has been raised in this regard in the present proceedings and, consequently, there is no need to examine it further in the appeal proceedings.
94. In paragraph 125 of the contested judgment, the General Court extends the risk of self-censorship to opinions of the legal service. I have already explained in connection with the protection of decision‑making processes that I do not find this idea convincing. (38) It is even less persuasive in the case of legal advice as the Commission’s legal service is independent of DG Competition. Its members need not therefore fear any detrimental effects stemming from critical opinions, even if they were made public. Furthermore, the absence of criticism would make the opinions of the legal service entirely pointless. They are specifically intended to highlight possible problems and weaknesses.
95. A more likely possibility would be a shift to informal forms of deliberation, which could, for example, take place only orally. However, the above considerations regarding the protection of decision‑making processes are also valid in this respect. It will often be impossible, because of the complexity of competition procedures, to dispense entirely with written opinions.
96. In so far as the General Court mentions, in paragraph 126, the risk of an inconsistency between the opinion of the legal service which is argued internally and the position which might have to be taken by its members before the General Court, that risk no longer exists in any case after the Courts have taken a final decision on the legal measure in question. The General Court is therefore wrong when it states in paragraph 127 that the Airtours judgment is irrelevant for the application of the exception relating to legal advice.
97. This conclusion is also not affected by the actions for damages arising from the Airtours/First Choice decision, which was still pending at that time.
98. Those proceedings essentially concerned the question whether the Commission had committed a sufficiently serious breach of its duties when it adopted the decision, which had already been found to be unlawful, in order to give rise to a claim for damages. (39) The opinions of the legal service regarding such a decision were, as a rule, intended to show only that the issues involved were complex and thus suggested that there was not a serious breach. Such opinions can establish that there was a serious breach only if they reveal serious deficiencies in the administrative procedure. In that case, however, the Commission would not have a legitimate interest in withholding those documents. Rather, it would be in the public interest to reveal such deficiencies so as to prevent a repetition.
99. The assessment of the application of the second indent of Article 4(2) of Regulation No 1049/2001 is therefore also based on an error in law by the General Court.
C – The examination of the overriding public interest in disclosure
100. Sweden also objects to the nature of the examination of whether the Commission rightly ruled out an overriding public interest in disclosure of the documents in questions.
101. The second indent of Article 4(2) and (3) of Regulation No 1049/2001 each provide that the institutions must refuse access to a document where a protected interest is undermined or seriously undermined, unless there is an overriding public interest in disclosure.
102. In paragraph 60 et seq., 118 et seq. and 129 of the contested judgment, the General Court simply considered and rejected the submissions made by MyTravel.
103. Sweden contends that it is not the applicant’s responsibility to demonstrate a public interest.
104. Sweden is essentially correct in this view. The Court of Justice has found that in the situations referred to in Article 4(2) and (3) of Regulation No 1049/2001 the institution in question must explain whether or not there is an overriding public interest that might nevertheless justify disclosure of the document concerned. (40) It is therefore necessary to consider, of the institution’s own motion, at least the most striking aspects of the individual case. (41)
105. In court proceedings, however, an infringement of Article 4(2) or (3) of Regulation No 1049/2001 is considered, in connection with an examination of the overriding public interest, only if the applicant makes a complaint in that regard. If such a complaint does not concern the complete absence of such an examination, it must indicate the aspects which were not correctly assessed. It does not therefore constitute an error in law if the General Court concentrates on its submissions.
106. Sweden is nevertheless correct in its view that MyTravel put forward aspects which could give grounds for a sufficient overriding public interest.
107. The Court has found that the public’s interest in being informed about important issues of Community law, such as those concerning competition, and about issues which are of great political interest, because they are raised by infringement proceedings, does not in principle prevail over the protection of the ongoing court proceedings. (42)
108. However, the present case concerns concluded administrative procedures. The General Court stated in paragraph 38 of the contested judgment that above all MyTravel submitted that the severity of the criticisms made by the General Court in the Airtours judgment prompted the Commission to conduct an internal inquiry in order to draw the lessons to be learned from that judgment and to determine the changes to be made to its decision-making practice. Against that background, there is an overriding public interest in understanding what happened, how it could have been prevented and what was done in order to avoid any future repetition. Transparency allows the public to ensure that the steps taken to cure a deficiency on the administration’s part are adequate and appropriate.
109. This increased public interest in the implications of the Airtours judgment goes much further than the general interest in matters of competition law or treaty infringement proceedings. It must have become apparent in the examination of the request for access to the contested documents. Nevertheless, the Commission failed to mention it in the two decisions on access to documents. It cannot therefore be assumed that it took that interest into consideration in its assessment.
110. It is even more difficult to comprehend why the General Court stated, in paragraph 63 of the contested judgment, that the applicant did not explain why this constituted an overriding public interest and, in paragraph 64 et seq., stressed only the personal interests of MyTravel. Such explanations and possible personal interests cannot be relevant if the Commission does not even begin to consider an evident special public interest.
111. Consequently, the assessment of a possible overriding public interest is also vitiated by an error of law.
D – Partial access
112. Lastly, Sweden objects that the Commission failed to examine sufficiently precisely whether parts of the withheld documents could be disclosed. However, that submission concerns a point which was not the subject-matter of the proceedings before the General Court. Since, under Article 113(2) of the Rules of Procedure, the subject-matter of the proceedings before that General Court may not be changed in the appeal, this plea in law is inadmissible. (43)
E – Result of the examination of the appeal
113. The contested judgment is vitiated by an error in law as far as the assessment of the application of the second indent of Article 4(2) and the second subparagraph of Article 4(3) of Regulation No 1049/2001 is concerned. It must therefore be set aside to that extent.
F – The action before the General Court
114. In accordance with the first paragraph, second sentence, of Article 61 of the Statute of the Court of Justice, where the judgment under appeal has been annulled, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits. That is so in this case.
115. MyTravel had sought the annulment of the two Commission decisions by which its request for access was refused.
116. It is clear, following the examination of the first two pleas in law, that in those decisions the Commission wrongly invoked the exceptions relating to the protection of the decision-making process and of legal advice. (44) However, it also based the decisions on the protection of court proceedings (45) and on the protection of investigations and audits. (46)
117. The General Court has taken a final decision on the application of the latter exception, but only with regard to a single document. On the other hand, it has not yet been examined whether those two exceptions justify the refusal of access to the other documents. However, both exceptions would have required the Commission to take into consideration the special public interest in their relationship with the Airtours judgment, which it did not. (47) Consequently, they also cannot justify the refusal.
118. Accordingly, the two Commission decisions must be set aside in their entirety.
V – Costs
119. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court shall make a decision as to costs. Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. The first paragraph of Article 69(4) of the Rules of Procedure provides that Member States which intervene in the proceedings are to bear their own costs.
120. Since Sweden’s appeal should be upheld, the Commission must be ordered to bear the costs incurred by Sweden in the present appeal proceedings, as applied for.
121. Denmark, Germany, France, the Netherlands, Finland and the United Kingdom must bear their own costs.
122. Because Sweden did not apply for the annulment of the decision of the General Court as to costs, it is not to be modified.
VI – Conclusion
123. I therefore propose that the Court:
1. Set aside paragraph 2 of the operative part of the judgment of the Court of First Instance of 9 September 2008 in Case T-403/05 MyTravel v Commission;
2. Annul the Commission Decision of 5 September 2005 (D(2005) 8461);
3. Annul the Commission Decision of 12 October 2005 (D(2005) 9763);
4. Order the European Commission to bear its own costs incurred in the appeal proceedings and to pay the costs incurred by the Kingdom of Sweden.
5. Order the Kingdom of Denmark, the Federal Republic of Germany, the French Republic, the Kingdom of the Netherlands, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.