Provisional text

Case T‑221/08

(publication by extracts)

Guido Strack

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to an OLAF investigation file — Action for annulment — Implied and express refusal to grant access — Exception relating to the protection of privacy and the integrity of the individual — Exception relating to the protection of the commercial interests of a third party — Exception relating to the protection of the decision-making process — Duty to state reasons — Non-contractual liability)

Summary — Judgment of the General Court (First Chamber), 26 April 2016

1.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Application for access to documents already held by the applicant, designed to obtain copies free of the obligation not to disclose — Lawfulness — No obligation to state reasons

(European Parliament and Council Regulation No 1049/2001)

2.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Scope

(European Parliament and Council Regulation No 1049/2001, Art. 4(3), second subpara.)

3.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal to grant access — Possibility of basing reasoning on general presumptions applicable by reference to the nature of the documents concerned

(European Parliament and Council Regulation No 1049/2001, Art. 4)

4.      EU institutions de the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Scope — Application to documents relating to an investigation by the European Anti-Fraud Office (OLAF) — General presumption that disclosure of the said documents will undermine protection of the interests involved in such an investigation

(Art. 324 TFEU; European Parliament and Council Regulations No 1073/1999, Art. 8(2), and No 1049/2001, Art. 4(3), second subpara.)

5.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Scope — Application for access concerning documents falling within the internal investigation procedures of OLAF — Whether included

(European Parliament and Council Regulations No 1073/1999 and No 1049/2001, Art. 1(a))

6.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Overriding public interest justifying the disclosure of documents — Distinction from the principle of transparency

(European Parliament and Council Regulation No 1049/2001, Art. 4(3), second subpara.)

7.      EU institutions de the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to grant partial access to data not covered by the exceptions — Application to documents falling within a category covered by a general presumption of refusal of access — Exclusion

(European Parliament and Council Regulation No 1049/2001, Art. 4(6))

8.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of privacy and integrity of the individual — Scope — Application to documents exclusively concerning the applicant — Exclusion

(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(b))

9.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Concept of a document — Scope — No account to be taken of the interest of the applicant in obtaining disclosure

(European Parliament and Council Regulation No 1049/2001, Art. 3(a))

10.    Commission — Re-use of documents held by the Commission — Decision 2006/291 — Authorisation procedure — Distinct from the procedure laid down by Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001, Art. 16; Commission Decision 2006/291, Art. 2(1) and (4))

1.      The purpose of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, is to make documents of the institutions accessible to the public at large. In that regard, a decision to refuse access on the basis of that regulation prevents the documents covered by the request for access from being regarded as public.

Accordingly, the fact that an applicant already holds the documents concerned by his request for access and that the purpose of the request was therefore not to enable him to discover their content but rather to disclose them to third parties is irrelevant, even more so as the reasons justifying the applicant’s decision to make such a request are irrelevant, since Regulation No 1049/2001 provides neither that the interested party must state reasons for the request for access to documents nor that the reasons stated for such a request may play a role in whether that request is granted or not. Accordingly, the institution to which such an application is made cannot rely on the sole fact that the applicant requesting access was already, or was regarded as already being, in possession of the requested documents but on a different basis, for refusing to examine the request for access under Regulation No 1049/2001.

(see paras 128, 131, 132, 135)

2.      See the text of the decision.

(see para. 148)

3.      The recognition that there is a general presumption that the disclosure of documents of a certain nature would, in principle, undermine the protection of one of the interests listed in Article 4 of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, enables the institution concerned to deal accordingly with a global request.

(see para. 150)

4.      Concerning a request for access to file notes taken by investigators entrusted with an investigation by the European Anti-Fraud Office (OLAF) and containing their reasoning and analysis on the development and direction of the investigation, on both substantive and administrative issues, the Commission cannot be blamed for refusing access to such documents on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents.

Public access to such documents would be particularly harmful to the ability of the Commission, and in particular of OLAF, to accomplish its mission to combat fraud in the public interest. The disclosure of the documents concerned would seriously undermine the Commission’s and OLAF’s decision-making process, because it would seriously compromise the complete independence of future OLAF investigations and their objectives by revealing OLAF’s strategy and working methods and by reducing OLAF’s chances of receiving independent assessments from its collaborators and of consulting the Commission’s services on very sensitive subjects. Disclosure would also run the risk of discouraging individuals from providing information concerning possible cases of fraud and thereby deprive OLAF and the Commission of information that is of use for the purpose of undertaking investigations for the protection of the financial interests of the European Union. That conclusion is all the more compelling since the exceptions to the right of access to documents, set out, in particular, in Article 4 of Regulation No 1049/2001, cannot, where the documents in question fall within a particular area of EU law, be interpreted without taking account of the specific rules governing access to those documents.

In that regard, given the special confidentiality which documents relating to an OLAF investigation enjoy, by virtue of Regulation No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office, a general presumption of no access to the documents related to the investigation and, in particular, to those containing opinions intended for internal use in the course of deliberations and preliminary consultations within OLAF may result, inter alia, from the provisions of that regulation. That presumption, which is justified in order to prevent any risk of seriously undermining the institution’s decision-making process within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001, must be applied irrespective of the question whether the request for access concerns an investigation procedure which has already been closed or one which is ongoing.

(see paras 151, 153, 154, 157, 160, 162, 169)

5.      Where Regulations Nos 1049/2001, regarding public access to European Parliament, Council and Commission documents, and 1073/1999, concerning investigations conducted by the European Anti-Fraud Office (OLAF), do not contain a provision expressly giving one regulation primacy over the other, it is necessary to ensure that each of those regulations is applied in a manner which is compatible with the other and enables them to be applied consistently.

Moreover, Regulation No 1049/2001 is applicable to OLAF in so far as that institution is recognised, for the purposes of that regulation, as forming part of the Commission, which is referred to in Article 1(a) of the said regulation among the institutions to which the latter applies.

(see paras 158, 164)

6.      See the text of the decision.

(see para. 167)

7.      See the text of the decision.

(see para. 168)

8.      In the matter of access to documents, the disclosure of personal data exclusively concerning the applicant for access in question cannot be refused on the ground that it would undermine the protection of privacy and the integrity of the individual.

(see para. 198)

9.      The broad definition of a ‘document’ in Article 3(a) of Regulation No 1049/2001 is based, in essence, on the existence of content that is saved and that may be copied or consulted after it has been generated, it being stated, first, that the nature of the storage medium, the type and nature of the content stored, as well as the size, length, volume or presentation of the content, are irrelevant to the question whether or not content is covered by that definition and, second, that the only restriction on content that is capable of falling within that definition is the condition that it must relate to a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility.

Moreover, in so far as the applicant for access does not have to justify his request for access to the documents, the real interest that the disclosure of the documents in question may represent for the applicant is also irrelevant for the purposes of Regulation No 1049/2001.

(see paras 249, 250, 252)

10.    Decision 2006/291 on the re-use of Commission information lays down, for the purposes of re-use of public documents in its possession, as defined in Article 2(1) of that decision, an authorisation procedure for accessing the same documents distinct from that laid down in Regulation No 1049/2001. The application of that decision presupposes that the documents in question are sufficiently identified and made public.

(see paras 265, 267)