JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
25 October 2013 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Document drawn up by the Commission in the context of the merger between Deutsche Börse and NYSE Euronext – Refusal to grant access – Exception relating to the protection of the decision-making process)
In Case T‑561/12,
Jürgen Beninca, residing in Frankfurt-am-Main (Germany), represented by C. Zschocke, lawyer,
applicant,
v
European Commission, represented by J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents,
defendant,
APPLICATION for annulment of the Commission’s decision of 9 October 2012 refusing access to a memorandum from the head of the unit responsible for competition matters at the Directorate-General for Enterprise and Industry
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas (Rapporteur), President, F. Dehousse and M. van der Woude, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 19 June 2013,
gives the following
Judgment
Background to the dispute
1 On 3 April 2012, the applicant, Jürgen Beninca, submitted a request to the European Commission, 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), for access to a memorandum from the head of the unit responsible for competition matters at the Directorate-General (DG) for Enterprise and Industry (‘the requested document’), which was drawn up in the context of the proposed merger between Deutsche Börse AG and NYSE Euronext (Case COMP/M.6166 − NYSE Euronext/Deutsche Börse), and had been alluded to in a press article.
2 On 23 May 2012, the Commission refused access to that document on the basis of Article 4(2) and (3) of Regulation No 1049/2001.
3 On 13 June 2012, the applicant submitted a confirmatory application to the Commission in accordance with Article 7(2) of Regulation No 1049/2001.
4 On 15 June 2012, the Commission acknowledged receipt of the confirmatory application and informed the applicant that he would receive a response within 15 working days.
5 On 6 July 2012, the Commission informed the applicant that the time-limit for replying to his confirmatory application had been extended by 15 days up to 27 July 2012.
6 On 26 July 2012, the Commission notified the applicant that it was not in a position to provide him with a definitive response as internal consultations were still ongoing.
7 On 21 September 2012, the applicant brought an action seeking annulment of the Commission’s implied decision of 27 July 2012 refusing access to the requested document (Case T‑418/12).
8 By decision of 9 October 2012 (‘the contested decision’), the Commission confirmed its refusal to grant the applicant access to that document. It essentially took the view that that document was covered in its entirety by the exception relating to the protection of the decision-making process, provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001, and was covered in part by the exception relating to the protection of commercial interests, provided for under the first indent of Article 4(2) of that regulation. Moreover, as regards the possibility, provided for in Article 4(6) of Regulation No 1049/2001, of granting partial access to a requested document, the Commission took the view that the document was covered in its entirety by the exceptions at issue. Finally, the Commission stated that no overriding public interest justified disclosure of the document under Article 4(2) and (3) of Regulation No 1049/2001.
9 By order of 19 February 2013 in Case T‑418/12 Beninca v Commission, not published in the ECR, the Court held that there was no longer any need to adjudicate on the action for annulment of the Commission’s implied decision refusing access to the requested document and ordered the Commission to bear its own costs and to pay those incurred by Mr Beninca.
Procedure and forms of order sought by the parties
10 The applicant brought the present action by application lodged at the Registry of the General Court on 19 December 2012.
11 The Commission lodged its defence on 20 March 2013.
12 On 22 March 2013, the General Court (Fifth Chamber) decided that a second exchange of pleadings was unnecessary.
13 On 17 April 2013, the applicant requested authorisation to supplement the case-file, in accordance with Article 47(1) of the Rules of Procedure of the General Court.
14 On 25 April 2013, the General Court (Fifth Chamber) decided not to grant that authorisation.
15 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
16 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs. .
Law
17 In support of his action, the applicant raises four pleas in law, essentially concerning, first, the exception relating to the protection of the decision-making process, second, the exception relating to the protection of the commercial interests of a third party, third, partial access, and, fourth, the existence of an overriding public interest.
The first plea in law, concerning the exception relating to the protection of the decision-making process
18 The applicant claims that the Commission misapplied the exception relating to the protection of the decision-making process. In his view, the merger control analysis procedure for the merger project in Case COMP/M.6166 − NYSE Euronext/Deutsche Börse had ‘ended’, with the result that disclosure of the requested document could no longer jeopardise the Commission’s decision-making process. In that regard, he points out, first, that the parties to the merger had terminated their merger project in accordance with public takeover laws, secondly, that a new merger project would constitute a new transaction and would require a new review, and, thirdly, that disclosure of the requested document would have no effect on any potential new merger control analysis.
19 It should be noted in that regard that, in accordance with the first recital of Regulation No 1049/2001, that regulation reflects the intention expressed in the second paragraph of Article 1 EU – inserted by the Treaty of Amsterdam – of marking 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 stated in the second recital of that regulation, right of public access to documents of the institutions reflects the democratic nature of those institutions (see Case C‑506/08 P Sweden v MyTravel and Commission [2011] ECR I‑6237, paragraph 72 and the case-law cited).
20 To that end, Regulation No 1049/2001 is intended, as is apparent from recital 4 and Article 1 thereof, to give the fullest possible effect to the right of public access to documents of the institutions (see Sweden v MyTravel and Commission, paragraph 19 above, paragraph 73 and the case-law cited).
21 Admittedly, that right is none the less subject to certain limits, based on grounds of public or private interest. More specifically, in reflection of recital 11 in the preamble thereto, Article 4 of Regulation No 1049/2001 provides for a number of exceptions enabling the institutions to refuse access to a document where its disclosure would undermine the protection of one of the interests covered by that provision (see Sweden v MyTravel and Commission, paragraph 19 above, paragraph 74 and the case-law cited).
22 However, since they derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly (see Sweden v MyTravel and Commission, paragraph 19 above, paragraph 75 and the case-law cited).
23 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 actually undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it is relying. Moreover, the risk of the protected interest being thus undermined must be reasonably foreseeable and not purely hypothetical (see Sweden v MyTravel and Commission, paragraph 19 above, paragraph 76 and the case-law cited).
24 However, it is open to the institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature (see Case C‑404/10 P Commission v Éditions Odile Jacob [2012] ECR I‑0000, paragraph 116 and the case-law cited).
25 Such general presumptions are applicable to merger control proceedings because the legislation governing those proceedings also lays down strict rules as regards the treatment of information obtained or established in the proceedings (Commission v Éditions Odile Jacob, paragraph 24 above, paragraph 118).
26 Lastly, it should be pointed out that the general presumptions referred to above do not exclude the possibility of demonstrating that a given document disclosure of which has been requested is not covered by those presumptions or that there is a higher public interest justifying the disclosure of the document concerned by virtue of Article 4(2) and (3) of Regulation No 1049/2001 (see, to that effect, Commission v Éditions Odile Jacob, paragraph 24 above, paragraph 126).
27 Those are the principles to be borne in mind when examining the applicant’s arguments.
28 In the present case, the Commission claims that the requested document contains opinions for internal use within the Commission’s DG for Enterprise and Industry relating to the draft statement of objections to be addressed to Deutsche Börse and NYSE Euronext, in accordance with Article 18 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). According to the contested decision, those opinions form part of deliberations and preliminary consultations connected with the adoption of Commission Decision C(2012) 404 final of 1 February 2012 declaring a concentration incompatible with the common market and the EEA Agreement (Case COMP/M.6166 – Deutsche Börse/NYSE Euronext).
29 It should be borne in mind that an action for annulment of Decision C(2012) 404 was pending before the Court in Case T‑175/12 Deutsche Börse v Commission when the request for access to the requested document was examined and the contested decision adopted.
30 In a situation such as that in the present case, where the Commission could, on the basis of the outcome of the legal proceedings referred to in paragraph 29 above, be required to recommence its investigations with a view to the possible adoption of a new decision on the merger in question, it must be accepted that there is a general presumption that any obligation placed on that institution to disclose, during those proceedings, an internal document such as the requested document would seriously undermine the institution’s decision-making process (see, to that effect, Commission v Éditions Odile Jacob, paragraph 24 above, paragraph 130).
31 It must be noted that the limitations placed on the application of the principle of transparency in relation to judicial activities pursue the same objective of ensuring that exercise of the right of access to the documents of the institutions does not undermine the protection of court proceedings. The protection of those proceedings requires compliance with the principles of equality of arms and the sound administration of justice to be ensured. Access to documents by one party could well upset the vital balance between the parties to a dispute – the state of balance which is at the basis of the principle of equality of arms – since only the institution concerned by an application for access to its documents, and not all the parties to the proceedings, would be bound by the obligation of disclosure (Commission v Éditions Odile Jacob, paragraph 24 above, paragraph 132).
32 It follows that the Commission was entitled to take the view that the requested document was covered by the exception relating to the protection of the decision-making process provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001, without carrying out a specific individual examination.
33 None of the arguments advanced by the applicant can cast doubt on that assessment.
34 It is necessary at the outset to dismiss as irrelevant the applicant’s argument that the merger control analysis procedure for the merger project in question ‘ended’, with the result that disclosure of the requested document could no longer jeopardise the Commission’s decision-making process.
35 The applicant relies for that purpose on the judgment in Case C‑447/10 P Commission v Agrofert Holding [2012] ECR I‑0000, paragraph 17. However, it is clear that the findings of the Court of Justice in that judgment which are relied on by the applicant concern the exception relating to the protection of the purpose of investigations, provided for in the third indent of Article 4(2) of Regulation No 1049/2001, not the exception relating to the protection of the decision-making process, provided for in the second subparagraph of Article 4(3) of the regulation, which is the exception that is relevant to the present case.
36 In any event, the fact that the procedure in question had ‘ended’ gives no grounds, of itself, for concluding that disclosure of the document was no longer likely seriously to undermine the Commission’s decision-making process. Indeed, the second subparagraph of Article 4(3) of Regulation No 1049/2001 is specifically designed to ensure that, even after a decision has been taken, the exception relating to the protection of the decision-making process may be applied to certain documents, namely, in the present case, documents containing opinions for internal use in deliberations and preliminary consultations within the institution concerned. The applicant has not contested the Commission’s claim that the requested document contains opinions for internal use in deliberations and preliminary consultations. It follows that the exception in question may be invoked even though the procedure concerned had ended.
37 Next, it is clear that the applicant’s argument that the parties to the merger had terminated their merger project cannot call into question the finding that the Commission could, on the basis of the outcome of the legal proceedings in Case T‑175/12, be required to resume its investigations with a view to the possible adoption of a new decision on the merger in question. It should be recalled that the first subparagraph of Article 10(5) of Regulation No 139/2004 provides that, where the European Union judicature gives a judgment which annuls the whole or part of a Commission decision that is subject to a time-limit set by that article, the concentration is to be re-examined by the Commission with a view to adopting a decision pursuant to Article 6(1) of that regulation. That provision makes no distinction on the basis of whether or not the proposed merger has been abandoned by the parties to the merger as a result of the Commission’s decision. It follows that while, as is essentially apparent from the documents submitted to the Court, the proposed merger would appear to have been abandoned as a result of the Commission’s adverse decision, the fact nevertheless remains that, if that decision were annulled, the Commission would be obliged under Regulation No 139/2004 to re-examine the merger in question and, therefore, to resume its activities with a view to adopting a new decision on the merger.
38 Moreover, the applicant’s argument that, as the parties to the merger had terminated their project, they would have to conclude a new agreement if they intended to continue with the project, which would constitute a new project, different from the initial one and requiring a new review, cannot call into question the foregoing considerations. Even if the parties to the merger were minded to submit a new merger project, that could not alter the fact that the Commission would be required, in accordance with the first subparagraph of Article 10(5) of Regulation No 139/2004, to re-examine the merger initially notified. Moreover, it follows from the third subparagraph of that provision that, following a judgment annulling a Commission decision, the notifying parties are to submit a new notification or supplement the original notification where the original notification has become incomplete by reason of intervening changes in market conditions or in the information provided. The applicant is therefore wrong to attempt to distinguish the present case from that which gave rise to the judgment in Commission v Éditions Odile Jacob, paragraph 24 above, on the ground that, in the latter case, the Commission would have had to carry out a new examination without the parties being required to conclude a new agreement, unlike the present case.
39 Lastly, as regards the applicant’s argument that disclosure would have no effect on any new control of the merger in view of, inter alia, developments in the sector in question, it should be noted that the second subparagraph of Article 10(5) of Regulation No 139/2004 expressly states that, following a judgment annulling a Commission decision, the concentration is to be re-examined in the light of current market conditions. Moreover, it should be recalled that, as is apparent from paragraph 38 above, where the original notification is deemed to be incomplete by reason of intervening changes in market conditions or in the information provided, the parties to the merger are required to submit a new notification or supplement the original notification in accordance with the third subparagraph of Article 10(5) of Regulation No 139/2004. Finally, even if, due to intervening changes, the requested document had no effect on any new control of the merger, that would not alter the nature of the document – namely a document containing opinions for internal use in deliberations and preliminary consultations within the Commission, by virtue of which it enjoys protection under the second subparagraph of Article 4(3) of Regulation No 1049/2001.
40 As regards the applicant’s argument that, in breach of the obligation to state reasons, the contested decision fails to identify any specific effect which disclosure of the requested document may have on the Commission’s decision-making process, it is sufficient to point out that, in the light of the presumption referred to in paragraph 30 above, the Commission was not under any obligation to allude specifically to such effects and that, in any event, section 4 of the contested decision sets out, to the requisite legal standard, the reasons why the Commission is of the view that the requested document is covered by the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001.
41 It follows from all the foregoing that the first plea must be rejected.
The third plea, concerning partial access
42 The applicant claims that the Commission did not examine the possibility of granting partial access to the requested document. He submits, first, that the contested decision misapplies Article 4(6) of Regulation No 1049/2001 and, second, that the reasoning of this decision is, in that regard, insufficient.
43 With regard, first, to the applicant’s claims that insufficient reasons are given in the contested decision, it is sufficient to note that it is clear from section 6 of that decision that the Commission considered the possibility of granting partial access to the document in question but concluded in any event that it was apparent from sections 4 and 5 of that decision that the document was covered in its entirety by the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001 and was partially covered by the exception provided for in the second indent of Article 4(2) of the regulation. It follows that, taken as a whole, the contested decision provides adequate reasons to the requisite legal standard.
44 With regard, second, to the merits of the Commission’s assessment, it should be recalled that Article 4(6) of Regulation No 1049/2001 provides that if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released.
45 It should also be noted that the effect of the general presumption referred to at paragraph 30 above is that any document covered by the presumption falls outside the obligation to disclose, in full or in part, its content (see, to that effect, Commission v Éditions Odile Jacob, paragraph 24 above, paragraph 133).
46 As is apparent from the examination of the first plea, the applicant has not succeeded in challenging that presumption, with the result that the Commission did not err in considering the requested document to be covered in its entirety by the exception relating to the protection of the decision-making process, provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001, and in refusing to grant partial access to the document.
47 The second plea must therefore be rejected.
The fourth plea, concerning the existence of an overriding public interest
48 The applicant is of the view that the Commission failed correctly to examine whether there was an overriding public interest justifying disclosure of the requested document. The applicant submits in that regard that the contested decision, first, is at odds with the principle of non-discrimination, second, misrepresents the alleged interest and, third, misapplies the judgment of the Court of Justice in Case C‑139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I‑5885.
49 In that regard, it must be borne in mind that, under the last sentence of Article 4(2) and Article 4(3) of Regulation No 1049/2001, only an overriding public interest can take priority over the need to protect the interests set out in paragraphs 2 and 3 of that provision.
50 Where the institution concerned takes the view that disclosure of a document would undermine the protection of the decision-making process afforded by the second subparagraph of Article 4(3) of Regulation No 1049/2001, it is incumbent on it to ascertain whether there is any overriding public interest justifying disclosure (see, to that effect and by analogy, Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑4723, paragraph 44).
51 In that respect, it is for the institution in question to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 in the preamble to Regulation No 1049/2001, from increased openness, in that this enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (see, to that effect and by analogy, Sweden and Turco v Council, paragraph 50 above, paragraph 45).
52 Lastly, it should be noted that general presumptions, such as those referred to at paragraph 30 above, do not exclude the possibility of demonstrating that there is a higher public interest justifying the disclosure of a document by virtue of Article 4(2) and (3) of Regulation No 1049/2001 (see, to that effect, Commission v Éditions Odile Jacob, paragraph 24 above, paragraph 126).
53 In the present case, the Commission took the view in the contested decision that there was no higher public interest that could take priority over the need to protect the decision-making process.
54 None of the arguments put forward by the applicant is of such a kind as to call in question that assessment.
55 With regard, first, to the principle of non-discrimination, the applicant proceeds on the incorrect premiss that the Commission authorised disclosure of the requested document to a journalist. The Commission, however, denies that it granted a journalist access to that document and contends that the reference to the document in a press article was the result of a leak. The applicant has failed to put forward any evidence to demonstrate that the requested document was disclosed to the public in response to a lawful request and not, as the Commission maintains, as a result of a leak. In that context, it cannot be inferred from the fact that the Commission conducts an internal investigation that it is unaware whether or not it authorised disclosure of the document in question, as the applicant maintains, since the purpose of such an investigation is to ascertain the circumstances in which the alleged leak occurred. The unauthorised disclosure of a document cannot have the effect of granting public access to a document covered by one of the exceptions provided for in Article 4 of Regulation No 1049/2001. The applicant cannot therefore validly invoke the principle of non-discrimination. Furthermore, in the present case there is no evidence which permits the inference that there is an overriding public interest justifying disclosure of the requested document on the basis of that principle.
56 With regard, second, to the argument that the contested decision misrepresents the alleged interest, it should be noted that the Commission stated that the applicant claimed that disclosure of the requested document would guarantee fair legal process for his client and it took the view that he was asserting a private, not a public interest.
57 In response, the applicant claims that his request was submitted with the consent of his client, the applicant in Case T‑175/12, and that he was part of the team responsible for the action in that case. In the applicant’s view, the mere fact that he is pursuing rights conferred on him by Regulation No 1049/2001 does not mean that his request relates to a private interest.
58 First, it is clear that, having regard to the general principle of access to documents laid down by Article 255 EC and recitals 1 and 2 in the preamble to Regulation No 1049/2001, an overriding public interest justifying disclosure must be objective and general in nature and must not be indistinguishable from individual or private interests, such as those relating to an action brought against the European Union institutions, since such individual or private interests are irrelevant to the weighing-up of interests required by the second subparagraph of Article 4(3) of the regulation.
59 Second, it is well-established case-law that even if the documents requested prove necessary for the applicant’s defence in an action for annulment – a question which falls to be considered in this case – that is irrelevant for the purpose of assessing the balance of the public interest (see, to that effect and by analogy, Joined Cases T‑110/03, T‑150/03 and T‑405/03 Sison v Council [2005] ECR II‑1429, paragraph 55, and order of 8 June 2005 in Case T‑287/03 SIMSA v Commission, not published in the ECR, paragraph 34).
60 Lastly, with regard to the argument that there is a public interest in disclosure as there is reason to fear that certain of the Commission’s departments prejudged the outcome of Case COMP/M.6166, it is sufficient to point out that, as the applicant himself suggests, that question must be examined in the context of Case T‑175/12 and cannot of itself justify an overriding public interest that is objective and general in nature.
61 The Commission did not, therefore, err in taking the view that the interest relied on by the applicant was a private, not a public interest.
62 With regard, third, to the argument that the contested decision misapplies the judgment in Commission v Technische Glaswerke Ilmenau, paragraph 48 above, the applicant contends that the situation at issue in the present case is different from that which led to that judgment and that the consideration set out in that judgment to the effect that public interest carries more weight in legislative matters than in administrative matters is not applicable.
63 It is clear that that argument is ineffective. Indeed, as is apparent from the foregoing, the applicant has been unable to demonstrate that the requested document was not covered by the exception relating to the protection of the decision-making process and that there was an overriding interest justifying disclosure of the document, so that the question whether the public interest in legislative matters carries more weight than in administrative matters is immaterial in the present case.
64 That argument is, in any event, unfounded. Contrary to what the applicant maintains, the Commission did not err in referring in the contested decision to the judgment in Commission v Technische Glaswerke Ilmenau, paragraph 48 above, and stating that it followed from that judgment that the general interest in transparency does not carry the same weight in both legislative and administrative matters. It is clear, in essence, from that judgment that where the Community institutions act in the capacity of a legislature, wider access to documents should be authorised pursuant to recital 6 of Regulation No 1049/2001, unlike cases involving documents falling within the framework of administrative functions specifically allocated to those institutions (see, to that effect, Commission v Technische Glaswerke Ilmenau, paragraph 48 above, paragraph 60). In the present case, the document in question does not fall within the framework of legislative, but of administrative documents, as the applicant himself acknowledges. Moreover, contrary to what the applicant claims, the situation at issue in the present case concerns, as in the case giving rise to the judgment in Commission v Technische Glaswerke Ilmenau, paragraph 48 above, the relationship between different regimes, namely the regime established by Regulation No 139/2004 and that laid down by Regulation No 1049/2001. Lastly, with regard to the fact that the considerations set out in the judgment in Commission v Technische Glaswerke Ilmenau, paragraph 48 above, concern the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, it is sufficient to observe that the Court of Justice has confirmed that it is possible to establish general presumptions of non-disclosure with regard to the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001 (Commission v Éditions Odile Jacob, paragraph 24 above, paragraph 130).
65 It follows from the foregoing that the fourth plea must be rejected.
66 It is clear from the examination of the first, third and fourth pleas that the Commission was entitled to take the view that the requested document was covered in its entirety by the exception relating to the protection of the decision-making process provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001 and that the applicant has failed to demonstrate that there is an overriding public interest justifying disclosure of that document.
67 The action must therefore be dismissed, without there being any need to examine the second plea, which disputes that the requested document was partially covered by the exception relating to the protection of the commercial interests of a third party, provided for under the first indent of Article 4(2) of Regulation No 1049/2001.
Costs
68 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action.
2. Orders Mr. Jürgen Beninca to pay the costs.
Papasavvas | Dehousse | Van der Woude |
Delivered in open court in Luxembourg on 25 October 2013.
[Signatures]