Action brought on 2 April 2024 – Novis v Commission

(Case T-185/24)

Language of the case: English

Parties

Applicant: Novis Insurance Company, Novis Versicherungsgesellschaft, Novis Compagnia di Assicurazioni, Novis Poisťovňa a.s. (Bratislava, Slovakia) (represented by: A. Börner and S. Henrich, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul Commission decision C(2024)810 final dated 2 February 2024 confirming the refusal to grant access to certain documents, and

order the defendant to bear all costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

First plea in law, alleging the infringement of the applicant’s rights to access information and documents pursuant to Article 15(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 42 TFEU and Regulation (EC) No 1049/2001 of the European Parliament and of the Council ¹ , as the defendant has wrongly refused to grant access to the relevant documents on the basis of the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001. The exception, relating to the protection of court proceedings, is not applicable. Therefore, the defendant could not rely upon it to deny access to the relevant documents.

The defendant incorrectly interpreted and applied the prerequisites of the exception as confirmed by case-law for access to documents not drawn up in the context of court proceedings. In particular, the defendant has failed to provide sufficient explanation as to the existence of relevant court proceedings in which a reference for a preliminary ruling ought to be particularly likely, a relevant link between the documents requested and the national court proceedings, and by failing to establish and explain why disclosure of each document requested would actually and not hypothetically undermine the equality of arms of the respective parties to court proceedings.

Further, the defendant’s decision constitutes an infringement of the relevant laws and the applicant’s rights as the defendant has failed to acknowledge that access to the requested documents must be permitted due to an overriding public interest in disclosure.

Second plea in law, alleging the infringement of the applicant’s right to access information and documents as the defendant has wrongly refused access to the relevant documents on the basis of the exception in the third indent of Article 4(2) of Regulation No 1049/2001.

The defendant cannot successfully invoke the exception relating to the protection of the purpose of investigations as no investigations were ongoing at the time the defendant adopted its decision to refuse access to the requested documents. The defendant cannot justify refusing access by reference to solely potential future investigations. Also, the defendant cannot argue that any (current or potential future) investigations would be seriously undermined in case of disclosure. No sufficient explanation was offered by the defendant substantiating such remote worry and no actual risk of undermining any investigation exists.

Even if the exception were applicable (which is denied), access to the relevant documents could not be refused due to an overriding public interest in disclosure.

Third plea in law, alleging the infringement of the applicant’s right to access information as the defendant has unlawfully refused access to the relevant documents on the basis of the exception in the first subparagraph of Article 4(3) of Regulation No 1049/2001.

The defendant cannot invoke the exclusion relating to the protection of the institution’s decision-making process as any relevant decision had already been taken, since the documents in question were not drawn up or received for internal use, and since the defendant has not provided any sufficient explanation why disclosure would seriously undermine the defendant’s decision-making process.

Even if the exception were applicable (which is denied), access to the relevant documents could not be refused due to an overriding public interest in disclosure.

Fourth plea in law, alleging the infringement of the law of the European Union, in particular of the applicant’s right to access information and documents, as the defendant disregarded the general principle of proportionality confirmed in Article 4(6) of Regulation No 1049/2001 and the obligation to specify reasons.

Fifth plea in law, alleging the infringement upon the applicant’s right to access the defendant’s files of significant concern to the applicant pursuant to Article 41(2)(b) of the Charter.

The defendant’s decision infringes upon the laws of the European Union as the applicant has a right to access the relevant documents also as part of a file of particular concern to the applicant, since the documents in question relate to concluded investigations pursuant to Article 17 of Regulation (EU) No 1094/2010 of the European Parliament and of the Council ¹ which led to direct and fundamental consequences for the applicant.

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¹ 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).

¹ Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ 2010 L 331, p. 48).