JUDGMENT OF THE GENERAL COURT (First Chamber)
14 May 2019 (*)
(Access to documents — Regulation (EC) No 1049/2001 — Letter sent by the Commission to the French authorities regarding the protocol for the compensation of the EDF Group in respect of the repeal of the permit to operate the Fessenheim Nuclear Power Plant — Refusal of access — Exception relating to the protection of the commercial interests of a third party — Exception relating to the protection of the purpose of inspections, investigations and audits — General presumption of confidentiality — Overriding public interest)
In Case T‑751/17,
Commune de Fessenheim (France),
Communauté de communes Pays Rhin-Brisach, established in Volgelsheim (France),
Conseil départemental du Haut-Rhin, established in Colmar (France),
Conseil régional Grand Est Alsace Champagne-Ardenne Lorraine, established in Strasbourg (France),
represented by G. de Rubercy, lawyer,
applicants,
v
European Commission, represented by A. Buchet and B. Stromsky, acting as Agents,
defendant,
supported by
French Republic, represented by E. de Moustier, B. Fodda and J.-L. Carré, acting as Agents,
intervener,
APPLICATION under Article 263 TFEU for annulment of the Commission Decision of 18 October 2017 refusing access to the letter which it sent to the French authorities on 22 March 2017 regarding the draft protocol for the compensation of the Électricité de France (EDF) Group in respect of the closure of the Fessenheim Nuclear Power Plant,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, P. Nihoul (Rapporteur) and J. Svenningsen, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure and further to the hearing on 24 January 2019,
gives the following
Judgment
I. Background to the dispute
1 The applicants, the Commune de Fessenheim, the Communauté de communes Rhin-Brisach, the Conseil départemental du Haut-Rhin and the Conseil régional Grand Est Alsace Champagne-Ardenne Lorraine, are four French local and regional authorities in whose territory the Fessenheim Nuclear Power Plant (‘the power plant’), operated by Electricité de France (EDF), is situated.
2 On 8 April 2017, the French Government adopted Decree No 2017-508 repealing the permit to operate the power plant (JORF of 9 April 2017, text No 3).
3 On 2 May 2017, the applicants, pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), submitted to the European Commission an application for access to the ‘decision’ by which the Commission ‘approved, in the light of EU State aid law, the draft protocol for the compensation of EDF by France in respect of the closure of the power plant’. According to the applicants, that ‘decision’ had been sent by the Commission to the French authorities by letter of 24 March 2017.
4 By letter of 16 June 2017, the Commission refused to disclose the letter at issue, which was in fact dated 22 March 2017, on the ground that it was part of an administrative investigation initiated in connection with the review of State aid and that, on that basis, it was covered by a general presumption that disclosure of such a document would, in principle, undermine the protection of the purpose of investigations, which constitutes an exception to the principle of disclosure of documents under the third indent of Article 4(2) of Regulation No 1049/2001. The Commission also relied on the exception relating to protection of commercial interests, laid down in the first indent of Article 4(2) of Regulation No 1049/2001.
5 On 27 June 2017, the applicants, pursuant to Article 7(2) of Regulation No 1049/2001, submitted a confirmatory application to the Commission, receipt of which was acknowledged on 28 June 2017.
6 By letter of 18 July 2017, the Commission informed the applicants that it had to extend the original time limit for examining that application by 15 working days, pursuant to Article 8(2) of Regulation No 1049/2001, because it had not been able to complete the consultations necessary for that examination. It also stated that the new time limit would expire on 10 August 2017.
7 In a letter of 18 August 2017, the Commission confirmed that the time limit had expired on 10 August 2017, but stated that it was still not in a position to respond to the confirmatory application.
8 In a letter of 18 October 2017, the Commission stated that the draft protocol for the compensation of EDF (‘the draft compensation protocol’) had been subject to pre-notification by the French authorities and that, in the letter of 22 March 2017 to which the application for access related, it had found that, at that stage, there was no objection, in the light of EU law on State aid, to that draft protocol. It also confirmed the rejection of the application for access to that document on the basis of the first and third indents of Article 4(2) of Regulation No 1049/2001 (‘the contested decision’).
II. Procedure and forms of order sought
9 By application lodged at the Court Registry on 17 November 2017, the applicants brought the present action.
10 By document lodged at the Court Registry on 28 February 2018, the French Republic sought leave to intervene in support of the form of order sought by the Commission. By decision of 9 April 2018, the President of the First Chamber of the General Court granted it leave to intervene. The French Republic lodged its statement in intervention and the applicants lodged their observations within the prescribed period.
11 By order of 4 October 2018, the General Court, pursuant to Article 91(c) and Article 92 of its Rules of Procedure, ordered the Commission to produce the letter of 22 March 2017. That document was submitted to the Court on 17 October 2018 and was not communicated to the applicants or the French Republic, in accordance with Article 104 of the Rules of Procedure.
12 On 17 December 2018, on a proposal from the Judge-Rapporteur, the Court, by way of measures of organisation of procedure under Article 89 of its Rules of Procedure, put written questions to the parties. The parties answered those questions within the prescribed period.
13 At the hearing on 24 January 2019, the parties presented oral argument and answered the questions put by the Court.
14 The applicants claim that the Court should:
– annul the contested decision;
– order the Commission to disclose the letter of 22 March 2017 within one week from the date of the judgment to be delivered;
– order the Commission to pay the costs.
15 The Commission contends that the Court should:
– dismiss the action for annulment as unfounded;
– declare inadmissible the claim that the Court should issue directions;
– order the applicants to pay the costs.
16 The French Republic contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
III. Law
A. The subject matter of the application for access
17 In the application, the applicants state that the action concerns the Commission’s refusal to grant the application for access relating to the letter which it sent to the French authorities on 22 March 2017 concerning the draft compensation protocol.
18 In the reply, the applicants claim that their application for access related not only to the Commission’s letter of 22 March 2017, but also to the draft compensation protocol.
19 In order to determine the subject matter of the application for access, reference should be made to the letter sent by the applicants to the Commission on 2 May 2017, which contains their original application.
20 According to that letter, the application for access made by the applicants concerned only the Commission’s letter of 22 March 2017, not the draft compensation protocol.
21 The subject matter of the application for access, thus defined, is confirmed by the confirmatory application which the applicants sent to the Commission on 27 June 2017.
22 It must therefore be concluded that the Commission’s refusal concerned an application for access to its letter of 22 March 2017, in which it found that, at that stage, there was no objection, in the light of State aid rules, to the draft compensation protocol (‘the document at issue’).
B. The claim that the Court should issue directions
23 In their second head of claim, the applicants submit that the Court should order the Commission to disclose to them the document at issue within one week from the date of the judgment to be delivered.
24 At the hearing, however, the applicants withdrew that head of claim.
25 Accordingly, there is no need for the Court to examine that claim.
C. The application for annulment
26 In their first head of claim, the applicants seek annulment of the contested decision, by which the Commission confirmed the rejection of the application for access to the document at issue.
27 In support of that application, the applicants put forward three pleas in law, alleging, first, infringement of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9), Regulation No 1049/2001 and Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17), secondly, infringement of Article 42 of the Charter of Fundamental Rights of the European Union and, thirdly, infringement of Article 47 of the Charter.
1. The first plea, alleging infringement of Regulation 2015/1589, Regulation No 1049/2001 and Directive 2006/111
(a) Infringement of Regulation 2015/1589
28 In the first plea, the applicants claim that the refusal to grant them access is contrary to Regulation 2015/1589, which, in recital 39 and Article 32 thereof, requires that the decisions taken by the Commission in connection with review of State aid be published in order to enable third parties to challenge those decisions, where appropriate.
29 The Commission, supported by the French Republic, disputes the merits of that argument.
30 In that regard, it should be noted that the document at issue was delivered in the course of exchanges which took place during pre-notification.
31 Such exchanges are not governed by Regulation 2015/1589. As is apparent from paragraph 10 of the Code of Best Practice for the conduct of State aid control procedures (OJ 2009 C 136, p. 13, ‘the Code of Best Practice’), pre-notification consists of voluntary and informal exchanges between the Commission and a Member State prior to the notification, pursuant to Article 108(3) TFEU, of a measure which may constitute State aid and therefore has to be examined in accordance with the review procedure laid down by Regulation 2015/1589. It is only after that notification that the provisions of Regulation 2015/1589, which lay down the detailed rules for reviewing the measure in the light of the rules of the FEU Treaty, and in particular Articles 4, 9 and 15 of that regulation, specifying the decisions that may be taken by the Commission at the end of the procedure, apply.
32 Furthermore, even if it were accepted that Regulation 2015/1589 did apply to exchanges occurring in the context of pre-notification, the document at issue would not be covered by recital 39 and Article 32 of that regulation, relied on by the applicants, because those provisions concern decisions which are adopted by the Commission at the end of the review procedure and which must be made public in the manner described therein.
33 As is apparent from paragraph 16 of the Code of Best Practice, pre-notification does not give rise to such a decision, but rather an assessment, which, like the document at issue, is not binding and merely expresses the view that the Commission was able to form, on the basis of the information received, as to the case before it, given that, as the Commission stated at the hearing, it remains free to change that view on the basis of information that might be provided to it subsequently.
34 For those reasons, the applicants’ argument alleging infringement of Regulation 2015/1589 must be rejected as unfounded.
(b) Infringement of Regulation No 1049/2001
(1) In respect of the exception relating to the protection of the purpose of investigations (Article 4(2), third indent, of Regulation No 1049/2001)
35 In the contested decision, the Commission refused access to the document at issue on the basis of the third indent of Article 4(2) of Regulation No 1049/2001, arguing that there was, for the purposes of applying that provision, a general presumption that disclosure of documents in the administrative file relating to a procedure for reviewing State aid would, in principle, undermine the protection of the purpose of investigations within the meaning of that provision.
36 The applicants maintain that the Commission was not entitled to apply the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001 and set out, in support of their position, three arguments, which are examined below.
(i) The alleged irrelevance of the Commission’s argument that disclosure of the document at issue would be liable to undermine the willingness of the Member States to cooperate with it
37 In the first place, the applicants claim that the Commission was not entitled to refuse access to the document at issue on the ground that its disclosure would be liable to undermine the willingness of the Member States to cooperate with it.
38 The Commission, supported by the French Republic, disputes the merits of that argument.
39 In that regard, it should be recalled that, in the contested decision, the refusal to grant access to the document at issue was primarily justified by the general presumption of confidentiality applicable, according to the Commission, to documents relating to a procedure for reviewing State aid.
40 According to case-law, the application of that presumption to documents relating to the procedure for reviewing State aid stems from the need to ensure that a harmonious relationship exists between Regulation No 1049/2001 and Regulation 2015/1589 (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraphs 58 and 61).
41 In general, the first of those regulations, namely Regulation No 1049/2001, provides that the public must have as wide a right of access as possible to documents of the institutions (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 51).
42 In Article 4 of Regulation No 1049/2001, that right is subject to exceptions under which the institutions are to refuse access to a document where its disclosure would undermine, inter alia, the protection of the commercial interests of a specific natural or legal person or the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.
43 According to case-law, in order to justify refusal of access to a document the disclosure of which has been requested, the institution must not only prove that that document is covered by an activity mentioned in Article 4(2) of Regulation No 1049/2001, but also provide explanations as to how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 53 and the case-law cited).
44 In respect of documents relating to a procedure for reviewing State aid, the case-law has, however, allowed the Commission to base its decisions on a general presumption of confidentiality, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraphs 54 and 55).
45 According to the line of case-law, that presumption aims to maintain an atmosphere of trust between the Member States and the Commission (see, to that effect, judgment of 19 September 2018, Chambre de commerce et d’industrie métropolitaine Bretagne-Ouest (port de Brest) v Commission, T‑39/17, not published, EU:T:2018:560, paragraph 57 and the case-law cited), such an atmosphere being necessary, first, to ensure that the Member State concerned sends the Commission all the documents relevant to the investigation and, second, to enable the Commission and that Member State to examine together the national measures at issue, the final assessment having to be based on solid, thorough information.
46 In order to safeguard that atmosphere of trust, Regulation 2015/1589 limits access to the file relating to the review to the Commission and the Member State concerned, without granting a right of access to third parties who have acquired, in the course of the procedure, the status of interested parties (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraphs 56 and 58).
47 The Court has held that, if the interested parties were able to obtain access to the documents in the administrative file on the basis of Regulation No 1049/2001, the system for the review of State aid would be undermined (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 58 and the case-law cited).
48 Consequently, according to case-law, the mere fact that the documents the disclosure of which is requested are part of the administrative file relating to a procedure for reviewing State aid provides sufficient justification for the application of the general presumption of confidentiality to them (judgment of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraph 41).
49 In the present case, the Court considers that the application of that general presumption of confidentiality cannot be restricted to the procedure following the notification by the Member State concerned of a measure which may constitute State aid, but that, in pursuit of the same objective, namely to maintain the trust of the Member State concerned, it must also apply to documents exchanged in the context of pre-notification.
50 Indeed, pre-notification exchanges may be followed by a preliminary investigation or even a formal investigation procedure. If documents exchanged during pre-notification could be disclosed, the presumption of confidentiality applicable to documents relating to the review procedure governed by Regulation 2015/1589 would lose its effectiveness, since the documents to which it relates could have been disclosed beforehand. Thus, the application of the general presumption of confidentiality to documents exchanged in the context of pre-notification seems necessary in order to safeguard the effectiveness of that presumption, in so far as it applies to the procedure following notification.
51 Moreover, it is apparent from paragraphs 10 and 17 of the Code of Best Practice that, as with the review procedure laid down by Regulation 2015/1589, pre-notification exchanges must take place, between the Commission and the Member State concerned, in an atmosphere of trust.
52 If the Commission were required to grant access to sensitive information provided in the context of pre-notification exchanges, the Member States may be reluctant to share that information, even though that willingness to cooperate is crucial to the success of those exchanges, which, according to paragraph 10 of the Code of Best Practice, are intended to enhance the quality of the notification and thereby make it possible to develop, under the best possible conditions, ways of addressing situations that might be problematic in the light of EU law on State aid.
53 The applicants observe, however, that the Commission has extensive powers of investigation enabling it to obtain the information it needs without having to count on the cooperation of the Member States.
54 While it is true that, in the context of Regulation 2015/1589, the Commission has extensive powers of investigation, the same is not true in the context of pre-notification exchanges, which take place at the initiative of the Member States and the success of which depends, in essence, on the relationship of trust established by the Commission with them.
55 The applicants’ argument alleging that the Commission’s argument that disclosure of the document at issue would be liable to undermine the willingness of the Member States to cooperate with it is irrelevant must therefore be rejected as unfounded.
(ii) The inapplicability, in the present case, of the general presumption of confidentiality
56 In the second place, the applicants seem to suggest, in the reply, that, even if it were found to be applicable to the documents exchanged in the context of pre-notification, the general presumption of confidentiality would not be applicable in the present case, for reasons linked to the particular circumstances of the case before the Court.
57 Thus, in paragraph 14 of the reply, the applicants state the following:
‘[The Commission] relies on the vague and, in the present case, inapplicable concept of a general presumption of confidentiality.’
58 Furthermore, in paragraph 19 of the reply, the applicants make the following submission:
‘The European Commission cannot therefore maintain that the documents are covered by a presumption of confidentiality, particularly as the amount of compensation paid by the French State to EDF in respect of the closure of the power plant and the detailed rules governing how it was to be paid cannot be regarded as confidential because they have to be disclosed to the financial markets.’
59 In that regard, it must be held, as the Commission suggests, that that argument is inadmissible.
60 First of all, that argument was raised for the first time in the reply and is therefore new, which, failing any explanation put forward by the parties to justify its late introduction, requires the Court to reject it pursuant to Article 84(1) of the Rules of Procedure.
61 Next, the applicants have not properly explained the reason why they consider that the general presumption of confidentiality of documents relating to a procedure for reviewing State aid is not applicable in the present case.
62 Thus, in paragraph 14 of the reply, the applicants merely make an assertion without providing any factual or legal basis for it.
63 Likewise, in paragraph 19 of that document, the applicants seem, through the use of the term ‘therefore’, to establish a causal link between the alleged inapplicability of the presumption and the preceding explanations. However, that link is not obvious, because those explanations do not concern the protection of the purpose of investigations, to which to the general presumption of confidentiality relates, but rather the exception relating to the protection of commercial interests, which is examined below and is not affected by that presumption.
64 Moreover, in that paragraph 19, by using the expression ‘particularly as’, the applicants suggest that the general presumption of confidentiality is not applicable to the amount of compensation envisaged for EDF, which, in any event, should be made public.
65 As is apparent from paragraphs 17 to 22 above, the application for access did not relate to the draft compensation protocol, but rather the assessment issued by the Commission following the exchanges that took place with the French Republic during pre-notification in respect of the closure of the power plant.
66 In the light of those various factors, it is apparent that the applicants’ argument alleging the inapplicability, in the present case, of the general presumption of confidentiality is not supported by appropriate evidence to substantiate that argument and that it must be rejected, for the same reason, as inadmissible, pursuant to Article 76(d) of the Rules of Procedure, since it does not enable the other party to prepare its defence or the Court to carry out its review.
(iii) The failure to state reasons
67 In the third place, the applicants complain that the Commission failed to explain, in the contested decision, how disclosure of the document at issue could harm the purpose of the investigation relating to the compensation of EDF.
68 The Commission, supported by the French Republic, disputes that argument.
69 As recalled in paragraph 43 above, according to settled case-law, where an institution bases its decision on an exception to the right of access laid down in Article 4(2) of Regulation No 1049/2001, it must in principle provide explanations as to how access to that document could specifically and actually undermine the interest protected by that exception (see judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 53 and the case-law cited).
70 That obligation is the consequence of the fact that the exceptions laid down in Article 4(2) of Regulation No 1049/2001 derogate from the principle of the right of access to documents of the EU institutions, enshrined in Article 1 of that regulation in accordance with Article 15(3) TFEU. That right of access, as stated in recital 4 of that regulation, must be as wide as possible (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 51).
71 However, the position is different where, as in the present case, the institution is entitled to rely on a general presumption of confidentiality, such as that concerning documents relating to a procedure for reviewing State aid (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraphs 53 and 54 and the case-law cited) or an extension, as in the present case, of that presumption.
72 In that case, it suffices that, in accordance with settled case-law relating to the second paragraph of Article 296 TFEU, the statement of reasons discloses in a clear and unequivocal fashion the reasoning followed by the institution responsible for the measure, in such a way as to enable, first, the persons concerned to ascertain the reasons for the measure adopted and to defend their rights and, second, to enable the Court to exercise its power of review. It is not, however, necessary for the reasoning to go into all the various relevant facts and points of law. The question whether the statement of reasons for a decision meets those requirements must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 96 and the case-law cited).
73 In the present case, in the contested decision, the Commission clearly stated, first, that the draft compensation protocol had been subject to pre-notification and that it had carried out an investigation on the basis of exchanges with the French authorities in accordance with the Code of Best Practice, secondly, that, on the basis of the case file as it then stood, the Commission’s services had found that there was no objection to the draft compensation protocol in the light of EU law on State aid and that, at that stage, it had not yet been signed or formally notified, thirdly, that there was a general presumption that disclosure of the documents in an administrative file relating to a procedure for reviewing State aid would undermine the protection of the purpose of investigations and, fourthly, that under the procedural rules governing State aid, interested parties other than the Member State concerned did not have the right to consult documents in the administrative file and that, if such access were granted, the review system would be undermined.
74 The Commission added that, given that the information provided by the Member States contained sensitive information concerning the undertakings in question, those Member States could be dissuaded from cooperating with the Commission, should the documents in the administrative file be disclosed.
75 Lastly, the Commission explained that, where the documents were covered by a general presumption of confidentiality, it was not required to examine each of the requested documents individually.
76 That statement of reasons is sufficiently precise to enable the applicants to understand the reasons why they were refused access to the document at issue and to enable the Court to carry out its review of that refusal.
77 The argument alleging that the statement of reasons is inadequate in respect of the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 must therefore be rejected as unfounded.
78 In the light of all the foregoing considerations, it must be held that the refusal to disclose the document at issue could lawfully be based on the protection of the purpose of investigations, in accordance with the third indent of Article 4(2) of Regulation No 1049/2001, and that the arguments put forward by the applicants in relation to that provision must be rejected as unfounded or inadmissible.
(2) (a) the exception relating to the protection of commercial interests and (b) the existence of an overriding public interest
79 The applicants complain that the Commission misapplied the exception relating to the protection of commercial interests, laid down in the first indent of Article 4(2) of Regulation No 1049/2001.
80 In that regard, it should be noted that, since the refusal to grant access may be based on the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, which aims to protect the purpose of investigations (see paragraph 78 above), the applicants’ arguments relating to the protection of commercial interests must be regarded as ineffective.
81 The applicants further submit that, even assuming that the protection of commercial interests may be relied on in the present case, the Commission erred in law by failing to recognise the existence of an overriding public interest that would prevail over that exception and require the disclosure of the document at issue.
82 At the hearing, the applicants, questioned by the Court, stated that, so far as they were concerned, the overriding public interest was raised in connection with the exception relating to the protection of commercial interests but was not raised in respect of the exception relating to the protection of the purpose of investigations.
83 As it is presented by the applicants as relating solely to the application of the exception relating to the protection of commercial interests, which does not need to be examined in the present judgment, as stated in paragraph 80 above, it must be concluded, on the same grounds, that the possible existence of an overriding public interest does not need to be examined either, the Court being bound in that regard by the claims made by the parties.
84 For those reasons, the arguments in respect of the exception relating to the protection of commercial interests and in respect of the possible existence of an overriding public interest must be rejected, in the form in which the latter argument was put forward by the applicants, as ineffective.
(c) Infringement of Directive 2006/111
85 In the first plea, the applicants claim that the refusal to grant access to the document at issue is contrary to Directive 2006/111, in particular Article 3(f) thereof.
86 The Commission, supported by the French Republic, disputes the merits of that argument.
87 In that regard, it should be noted that Directive 2006/111 imposes on the Member States a certain number of obligations with a view to ensuring that financial relations between the Member States and public undertakings are transparent.
88 To that end, the Member States must, pursuant to Article 1 of Directive 2006/111, ensure that the public funds made available directly by public authorities to the public undertakings concerned, the public funds made available by public authorities through the intermediary of public undertakings or financial institutions and the use to which these public funds are actually put are clear and apparent from their accounts. In addition, they must ensure that the financial and organisational structure of any undertaking required to maintain separate accounts is correctly reflected in the separate accounts, so that the costs and revenues associated with different activities and full details of the methods by which costs and revenues are assigned or allocated to different activities are clear and apparent.
89 Furthermore, pursuant to Article 4(1) of Directive 2006/111, the Member States are to take the measures necessary to ensure that, for public undertakings required to maintain separate accounts, first, the internal accounts corresponding to different activities are separate, second, all costs and revenues are correctly assigned or allocated on the basis of consistently applied and objectively justifiable cost accounting principles and, third, the cost accounting principles according to which separate accounts are maintained are clearly established.
90 Lastly, under Article 6(1) of Directive 2006/111, Member States are to ensure that information concerning the financial relations between themselves and public undertakings be kept at the disposal of the Commission, in principle, for 5 years from the end of the financial year in which the public funds were made available to the public undertakings concerned.
91 As the Commission observes, Directive 2006/111, which is addressed to the Member States, does not contain any provision authorising or requiring the Commission to disclose to third parties information which came to its knowledge pursuant to the provisions of that directive.
92 The same applies to Article 3(f) of Directive 2006/111, referred to by the applicants, according to which the aspects of financial relations between public authorities and public undertakings the transparency of which is to be ensured include, inter alia, compensation for financial burdens imposed by the public authorities.
93 That provision merely provides that information relating to compensation for financial burdens imposed by public authorities has to be included in the accounts submitted by such undertakings in the manner provided for in Articles 1 and 4 of Directive 2006/111, as referred to in paragraphs 88 and 89 above, and kept at the disposal of the Commission, as described in Article 6 and referred to in paragraph 90 above.
94 Thus, contrary to what the applicants claim, Directive 2006/111 does not contain any provisions requiring or authorising the Commission to disclose the document at issue to the applicants.
95 In the light of those considerations, the argument alleging infringement of Directive 2006/111 must be rejected as unfounded.
2. The second plea, alleging infringement of Article 42 of the Charter of Fundamental Rights
96 The applicants submit that, by refusing access to the document at issue, the Commission has infringed Article 42 of the Charter of Fundamental Rights, which ranks higher than Regulation No 1049/2001 and decisions taken by the bodies of the European Union.
97 Article 42 of the Charter of Fundamental Rights 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 … whatever their medium.’
98 In the first place, as regards Regulation No 1049/2001, the applicants state in paragraph 51 of the application that ‘it is clear that, in the event of inconsistency between Article 42 of the Charter of Fundamental Rights and the regulation at issue, it is for the Court to disapply the regulation by way of a plea of illegality’.
99 It must be examined whether, by that statement, the applicants have put forward a plea of illegality directed against Regulation No 1049/2001 in an admissible manner.
100 In that regard, it must be recalled that, under Article 277 TFEU, ‘notwithstanding the expiry of the period laid down in the sixth paragraph of Article 263, any party may, in proceedings in which an act of general application adopted by an institution … is at issue, plead the grounds specified in the second paragraph of that article, in order to invoke before the Court of Justice of the European Union the inapplicability of that act’.
101 However, in order for the Court to be required to find that a plea has been raised under that provision, it is not sufficient simply to insert the words ‘plea of illegality’ in one paragraph of the application.
102 It should be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, and under Article 76(d) and (e) of the Rules of Procedure, the application must contain the subject matter of the proceedings, the pleas in law and arguments relied on, a summary of those pleas in law and the form of order sought by the applicant. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars on which it is based be indicated, at least in summary form, coherently and intelligibly in the application itself (see order of 6 November 2018, Chioreanu v ERCEA, T‑717/17, EU:T:2018:765, paragraph 23 and the case-law cited).
103 In the present case, neither the subject matter of the proceedings, described in paragraph 1 of the application, nor the form of order sought therein refer to an application under Article 277 TFEU.
104 Moreover, the applicants have not put forward any arguments, whether in their written pleadings or at the hearing, to substantiate, where necessary, their general claim, referred to in paragraph 98 above, that Regulation No 1049/2001 should be disapplied for infringement of Article 42 of the Charter of Fundamental Rights.
105 In those circumstances, it cannot be held that a preliminary plea has been properly raised before the Court concerning the assessment of the lawfulness of Regulation No 1049/2001 in the light of Article 42 of the Charter of Fundamental Rights.
106 In the second place, irrespective of any assessment as to the lawfulness of Regulation No 1049/2001, the applicants seek annulment of the contested decision on the ground that, by refusing them access to the document at issue, the Commission infringed Article 42 of the Charter of Fundamental Rights.
107 In that regard, it should be recalled that, in accordance with Article 52(2) of the Charter of Fundamental Rights, rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties.
108 Under Article 15(3) TFEU, the right of access to documents of the institutions is guaranteed, subject to the principles and conditions determined by the European Parliament and the Council of the European Union, by means of regulations, in accordance with the ordinary legislative procedure.
109 Pursuant to that provision, Regulation No 1049/2001, adopted on the basis of Article 255 EC, which preceded Article 15(3) TFEU, laid down the general principles and limits with regard to the right of access to documents held by the Commission (see, to that effect, judgment of 28 March 2017, Deutsche Telekom v Commission, T‑210/15, EU:T:2017:224, paragraph 113).
110 The lawfulness of the contested decision must therefore be assessed by reference to Regulation No 1049/2001.
111 It follows from the response given to the first plea that the Commission could lawfully refuse to grant the applicants access to the document at issue on the basis of the third indent of Article 4(2) of Regulation No 1049/2001, concerning the protection of the purpose of investigations.
112 Since it has been held above that the Commission correctly applied that provision, it must be concluded that, by adopting the contested decision, the Commission did not infringe Article 42 of the Charter of Fundamental Rights.
113 Consequently, the second plea must be rejected as, in respect of the first part, inadmissible and, in respect of the second, unfounded.
3. The third plea, alleging infringement of Article 47 of the Charter of Fundamental Rights
114 The applicants claim that, by refusing to grant access to the document at issue, the Commission infringed Article 47 of the Charter of Fundamental Rights, concerning the right to an effective remedy.
115 The Commission, supported by the French Republic, contests that plea.
116 In the first place, the applicants submit that, as a result of the refusal to disclose the document at issue to them, they are unable to bring an action for annulment before the EU judicature against the decision contained in the document at issue.
117 In that regard, it suffices to note, as the Commission and the French Republic have contended, that the document at issue does not contain a decision which may be the subject of an action for annulment under Article 263 TFEU.
118 According to settled case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position are acts or decisions which may be the subject of an action for annulment (see judgment of 6 December 2007, Commission v Ferriere Nord, C‑516/06 P, EU:C:2007:763, paragraph 27 and the case-law cited).
119 As is apparent from paragraph 16 of the Code of Best Practice, the assessment issued by the Commission at the end of a pre-notification procedure is not an official position of the Commission, but rather a non-binding assessment of the conformity of the draft notification and the prima facie compatibility of the planned project with EU law on State aid.
120 The Commission could not therefore have impeded the applicants’ right to bring an action for annulment before the EU judicature by refusing access to the document at issue.
121 In the second place, the applicants claim that, as a result of the contested decision, they are prevented from acquainting themselves with the compensation protocol, which they need in order to demonstrate, in an action brought before the Conseil d’État (Council of State, France), that the decree repealing the permit to operate the power plant is unlawful on the ground that it does not comply with the EU rules on State aid.
122 In that regard, it should be recalled that the application for access made by the applicants concerned the document at issue, not the draft compensation protocol. Consequently, even if the Commission had granted their application for access, the applicants would not have obtained the document allegedly required for their action.
123 Moreover, as the Commission has observed, the purpose of Regulation No 1049/2001 is to settle questions relating to public access to documents held by the EU institutions, not those relating to the evidence to be produced by the parties in judicial proceedings, whether it be a dispute before the EU judicature or before the national courts.
124 In national proceedings, it is, according to case-law, for the national court before which the action has been brought to decide on the way in which evidence and appropriate documents are to be produced, in accordance with the applicable law, to resolve the dispute (see, to that effect, judgment of 13 September 2013, Netherlands v Commission, T‑380/08, EU:T:2013:480, paragraph 82).
125 Consequently, the third plea must be rejected, and the action must therefore be dismissed in its entirety.
Costs
126 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.
127 Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
128 In accordance with Article 138(1) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs.
129 Accordingly, the French Republic must bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action;
2. Orders the Commune de Fessenheim, the communauté de communes Pays Rhin-Brisach, the conseil départemental du Haut-Rhin and the conseil régional Grand Est Alsace Champagne-Ardenne Lorraine to bear their own costs and pay those incurred by the European Commission;
3. Orders the French Republic to bear its own costs.
Pelikánová | Nihoul | Svenningsen |
Delivered in open court in Luxembourg on 14 May 2019.
[Signatures]