JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
12 July 2023 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Final report of the investigation by OLAF into the performance of a service contract financed by the EDF – Refusal to grant access – Exception relating to the protection of the decision-making process – Exception relating to protection of the purpose of inspections, investigations and audits – General presumption – Obligation to state reasons)
In Case T‑377/21,
Eurecna SpA, established in Venice (Italy), represented by R. Sciaudone, lawyer,
applicant,
v
European Commission, represented by C. Ehrbar and A. Spina, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, R. Frendo and T. Perišin (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By its action based on Article 263 TFEU, the applicant, Eurecna SpA, seeks annulment of the decision of the European Anti-Fraud Office (OLAF) of 26 April 2021, by which the latter refused the applicant access to its final report and the annexes thereto at the end of investigation OC/2019/0766/B4 (‘the contested decision’).
Background to the dispute
2 The applicant is a company active in the provision of IT-related services.
3 In April 2014, the Association of the Overseas Countries and Territories of the European Union (OCTA) signed with the applicant, as the coordinating company, service contract FED/2014/341-873, entitled ‘Territorial Strategies for Innovation (TSI)’ (‘the contract’), for an initial amount of EUR 2 900 600, the performance of which ran from 29 April 2014 to 28 April 2020. That contract was financed by the European Development Fund (EDF) and its overall objectives were to strengthen sustainable development and economic diversification through innovative solutions and to improve the competitiveness of overseas countries and territories at regional and global level.
4 In order to perform the contract, the applicant recruited several experts, including one Team Leader Key Expert No 1.
5 On 25 April 2019, that team leader sent a letter to the OCTA and the European Commission informing them that the applicant had not paid him his remuneration for the work carried out between 2015 and 2018, namely the sum of EUR 430 326.23.
6 In August 2019, the Commission appointed an audit firm (‘the independent auditor’) in order to carry out an independent verification of the veracity and regularity of the reports sent by the applicant during the period from 29 April 2014 to 30 April 2019. It also applied to OLAF to carry out the checks falling within its competence concerning the possible existence of fraud, corruption or any other illegal activity likely to prejudice the financial interests of the European Union.
7 On 15 June 2020, the independent auditor issued his final report, according to which the sum of EUR 504 434.68 was considered ineligible for EDF financing. That sum comprised, first, an amount of EUR 2 034.68, relating to various costs for which the corresponding supporting documents were missing or inadequate, and, second, an amount of EUR 502 400, for which invoices for fees of the applicant’s experts were missing and there were differences between the number of hours of work declared by those experts and the number of hours of work declared by the applicant to the OCTA.
8 On 1 July 2020, OLAF announced the opening of investigation OC/2019/0766/B4 concerning the applicant in respect of the presumed irregularities which had arisen in the performance of the contract.
9 By letter of 4 December 2020, OLAF informed the applicant that investigation OC/2019/0766/B4 had been closed and that the final report of that investigation had been sent to the Venice Public Prosecutor’s Office (Italy) and the Commission’s Directorate-General (DG) for International Cooperation and Development for action on the following: first, the opening of a criminal investigation for possible fraud committed by means of incorrect expenditure verification reports used to obtain undue payments from the OCTA and, second, recovery of the sum of EUR 504 434.68, flagging of the applicant in the Early Detection and Exclusion System (EDES) database and assessment of the appropriateness of financial penalties in accordance with Article 10 of the general terms and conditions applicable to the contract.
10 On 22 January 2021, the applicant submitted a request to OLAF pursuant to Article 6 of 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), in order to obtain access to the final report of OLAF’s investigation OC/2019/0766/B4 and the annexes thereto (‘the documents requested’).
11 On 3 March 2021, OLAF refused to grant access to the documents requested.
12 On 10 March 2021, the applicant submitted a confirmatory application for access to those documents based on Article 7 of Regulation No 1049/2001.
13 By a pre-information letter of 11 March 2021, the Commission informed the applicant of the commencement, on the basis of the final report of the independent auditor, of the recovery procedure of the sum of EUR 417 234.68 and advised it that it could submit observations thereon within 30 days if it so wished.
14 On 26 April 2021, OLAF adopted the contested decision, by which it rejected the confirmatory application referred to in paragraph 12 above.
Forms of order sought
15 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to produce the documents requested;
– 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
The head of claim seeking annulment
17 In support of its action, the applicant raises, in essence, six pleas in law, alleging, first, an error of law as regards the consequences of access to the documents requested; second, infringement of the third indent of Article 4(2) of Regulation No 1049/2001 concerning the exception relating to the protection of the purpose of inspections, investigations and audits; third, infringement of Article 4(1)(b) of Regulation No 1049/2001 concerning the exception relating to the protection of privacy and the integrity of the individual and of the principle of proportionality; fourth, infringement of Article 4(6) of Regulation No 1049/2001 concerning partial access to the documents requested; fifth, infringement of the obligation to state reasons; and sixth, an error of law resulting from OLAF’s failure to recognise its rights of defence as having an overriding public interest within the meaning of Article 4 of Regulation No 1049/2001.
18 Since it has been consistently held that an absence of or an inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a plea involving a matter of public policy which must, if necessary, be raised by the EU judicature of its own motion (see judgments of 15 June 2017, Spain v Commission, C‑279/16 P, not published, EU:C:2017:461, paragraph 22 and the case-law cited, and of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraph 47 and the case-law cited), it is necessary to examine the fifth plea, alleging infringement of the obligation to state reasons.
19 By that plea, the applicant submits that the contested decision is vitiated by an inadequate statement of reasons in so far as, in paragraphs 4 and 5 of that decision, OLAF refers to the exception in Article 4(3) of Regulation No 1049/2001 relating to the institution’s decision-making process, without explaining the relevance of that specific exception to the content of the OLAF report. Thus, the applicant is unable to exercise its right to challenge the relevance of that exception, just as the Court is unable to exercise its own review of the reasons which led OLAF to rely on Article 4(3) of Regulation No 1049/2001.
20 The Commission disputes the applicant’s arguments.
21 In that regard, according to settled case-law, the statement of reasons required under Article 296 TFEU and under Article 41(2)(c) of the Charter of Fundamental Rights of the European Union for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights 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, to that effect, judgments of 4 June 2020, Hungary v Commission, C‑456/18 P, EU:C:2020:421, paragraph 57 and the case-law cited, and of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraph 53 and the case-law cited).
22 Nevertheless, the absence of a statement of reasons may be found even where the decision in question contains certain elements of reasoning. Thus, a contradictory or unintelligible statement of reasons amounts to a failure to state reasons. The same applies where the statement of reasons in the decision in question is so incomplete that it does not in any way enable the addressee, in the context of its adoption, to understand its author’s reasoning (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 55 and the case-law cited).
23 In particular, where an EU institution, body, office or agency that has received a request for access to a document decides to refuse to grant that request on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by that exception, and the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 54 and the case-law cited).
24 In that regard, it must be noted that an EU institution, when assessing a request for access to documents held by it, may take into account more than one of the grounds for refusal set out in Article 4 of Regulation No 1049/2001 (judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 113).
25 Thus, it must be noted that, where several reasons are stated, even if one of the grounds for the contested measure is vitiated by a failure to state reasons, that defect cannot lead to the annulment of that measure if one of the other grounds provides sufficient justification in itself (see, to that effect, judgment of 5 March 2019, Pethke v EUIPO, T‑169/17, not published, EU:T:2019:135, paragraph 93 and the case-law cited).
26 However, in certain cases, it is permissible for the EU institution, body, office or agency concerned to base its decisions on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind may apply to requests for disclosure relating to documents of the same nature (see, to that effect, judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 55 and the case-law cited).
27 The objective of such presumptions is thus the possibility, for the EU institution, body, office or agency concerned, to consider that the disclosure of certain categories of documents undermines, in principle, the interest protected by the exception which it is invoking, by relying on such general considerations, without being required to examine specifically and individually each of the documents requested (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 56 and the case-law cited).
28 Thus, it is apparent from the case-law that a decision refusing the disclosure of a document on the ground that that document is covered by a general presumption of confidentiality is reasoned to the requisite legal standard where the statement of reasons for that decision enables the addressee to understand, first, that the institution concerned relies on the confidentiality enjoyed by the document in question in order to refuse its disclosure and, second, that it is a document covered by that general presumption of confidentiality (see, to that effect, judgments of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 55, and of 21 October 2020, ECB v Estate of Espírito Santo Financial Group, C‑396/19 P, not published, EU:C:2020:845, paragraph 62).
29 The present plea must be examined in the light of the principles and case-law referred to in paragraphs 21 to 28 above.
30 In the present case, the main ground of the contested decision is based on the general presumption of confidentiality which includes the documents concerning OLAF investigations, pursuant to the third indent of Article 4(2) of Regulation No 1049/2001. It is apparent from the contested decision that OLAF considered that the documents requested were covered by the exception laid down in that provision, according to which the institutions are to refuse access to a document where its disclosure would undermine the protection of the purpose of inspections, investigations and audits. OLAF also considered, in addition, that the documents requested fell within the exception relating to the protection of the decision-making process, governed by the second subparagraph of Article 4(3) of Regulation No 1049/2001 and, in part, the exception provided for in Article 4(1)(b) of that regulation, under which access is to be refused where disclosure would undermine the protection of privacy and the integrity of the individual.
The statement of reasons for the contested decision in so far as it is based on the protection of the purpose of inspections, investigations and audits
31 As regards the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001, that provision provides that the institutions are to refuse access to a document where its disclosure would undermine the protection of the purpose of inspections, investigations and audits.
32 In that regard, it follows from the case-law that OLAF is entitled to rely on the general presumption that the purpose of investigations, inspections and audits is undermined in order to refuse the disclosure of documents concerning an investigation where that investigation is in progress or has just been closed and where, in the latter case, the competent authorities have not yet decided, within a reasonable period, on the action to be taken on its investigation report (see judgment of 1 September 2021, Homoki v Commission, T‑517/19, not published, EU:T:2021:529, paragraph 63 and the case-law cited).
33 The various acts of investigation or inspection may remain covered by the exception based on the protection of inspections, investigations and audits as long as the investigations or inspections continue, even if the particular investigation or inspection which gave rise to the report to which access is sought is completed (see judgment of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 110 and the case-law cited).
34 Nevertheless, to allow that the various documents relating to inspections, investigations or audits are covered by the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001 until the follow-up action to be taken has been decided would make access to the documents dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of the various authorities (judgment of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 111).
35 Such a solution would be contrary to the objective of guaranteeing public access to documents relating to any irregularities in the management of financial interests, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers (see judgment of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 112 and the case-law cited).
36 Thus, it is apparent from the case-law that the general presumption of confidentiality of documents concerning OLAF investigations is applicable until the authorities to which an OLAF final investigation report is addressed decide on the action to be taken on that report, by expressing the intention either to adopt measures adversely affecting the persons concerned or not to adopt such measures. However, if, on the date on which the institution to which a request for access has been made must reply to that request, those authorities have not expressed any intention, the general presumption of confidentiality of documents concerning OLAF investigations cannot exceed a reasonable period from the date on which OLAF sent them that report (see, to that effect, judgments of 26 May 2016, International Management Group v Commission, T‑110/15, EU:T:2016:322, paragraph 35 and the case-law cited, and of 1 September 2021, Homoki v Commission, T‑517/19, not published, EU:T:2021:529, paragraph 63 and the case-law cited).
37 It is in the light of that case-law that it must be assessed whether the contested decision, in so far as it is based on a general presumption under the third indent of Article 4(2) of Regulation No 1049/2001, contains sufficient reasons.
38 In particular, in accordance with the case-law cited in paragraph 28 above, it is necessary to determine whether the statement of reasons for the contested decision enabled the applicant to understand, first, that the Commission relied on the confidentiality from which the documents requested benefited in order to refuse their disclosure and, second, that they were documents covered by that general presumption of confidentiality.
39 In the present case, in the first place, it should be noted that the contested decision states that OLAF considered that the documents requested were covered by the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, on account of a general presumption, recognised by the case-law, that documents concerning OLAF investigations are non-accessible.
40 Thus, the statement of reasons for the contested decision enabled the applicant to understand that, in order to refuse disclosure of the documents requested, OLAF relied on the general presumption of confidentiality from which the documents concerning OLAF investigations may benefit under the third indent of Article 4(2) of Regulation No 1049/2001.
41 In the second place, although the contested decision states that the documents requested form part of OLAF’s investigation file OC/2019/0766, it must be observed that, from a factual point of view, in paragraph 3 of the contested decision, OLAF merely states, first, that that investigation was closed in December 2020 and, second, that its final report was sent to the Venice Public Prosecutor’s Office and to the Commission, accompanied by recommendations indicating possible follow-up actions. Similarly, in paragraph 5 of the contested decision, it is stated that OLAF’s final recommendation was transmitted to the competent Commission authorities and to the national judicial authorities and that, if those authorities intend to impose a penalty on a person who is the subject of the investigation, they must give him or her access to OLAF’s final report in order to permit him or her to exercise his or her rights of defence.
42 However, first, it must be noted that the grounds of the contested decision do not mention the fact, referred to in paragraph 13 above, that, prior to the adoption of that decision, the Commission sent, on 11 March 2021, a pre-information letter to the applicant with a view to recovering a sum of EUR 417 234.68 and advised it that it could submit observations thereon within 30 days if it wished to do so.
43 The commencement by the Commission, after the transmission of the OLAF report, of the procedure for recovering most of the sums paid and found to be ineligible on the basis of the final report of the independent auditor, against the applicant, may be considered a follow-up action in respect of one of the recommendations of the OLAF report and, therefore, as a decision marking the closure of the investigation within the meaning of the case-law cited in paragraph 32 above.
44 Given the silence of the contested decision on that point, it can be presumed that OLAF considered that the pre-information letter sent to the applicant on 11 March 2021 had neither the object nor the effect of closing the investigation.
45 However, the reasons for such an interpretation are not apparent from the grounds of the contested decision.
46 Thus, the Commission did not specify, in the contested decision, whether it considered that the pre-information letter sent to the applicant constituted a follow-up to the OLAF investigation report and, if so, the reasons why the transmission of that report to the Venice Public Prosecutor’s Office had the effect of extending the general presumption of confidentiality covering that report.
47 Second, according to the interpretation of the contested decision referred to in paragraph 44 above, it can be presumed that OLAF considered that, on the date of adoption of the contested decision, the authorities to which its final report was addressed had not yet decided, within a reasonable period, on the action to be taken in response to that investigation report.
48 Indeed, it should be noted that, in the contested decision, OLAF did not mention the precise date of transmission of its final report to the Commission and to the Venice Public Prosecutor’s Office.
49 It is true that, as is apparent from paragraph 9 above, the applicant was informed of that transmission by a letter from the Commission dated 4 December 2020.
50 However, in accordance with the case-law cited in paragraph 32 above, if the documents concerning an OLAF investigation which has just been closed benefit from the general presumption of confidentiality under the third indent of Article 4(2) of Regulation No 1049/2001 where the competent authorities have not yet decided on the action to be taken on the corresponding investigation report, it is on condition that, on the date of adoption of the decision on the refusal to disclose those documents, the period which has elapsed since the transmission of the OLAF report to the competent authorities cannot be regarded as unreasonable.
51 Thus, in the present case, in order to indicate to the applicant that the documents requested were, on the date of adoption of the contested decision, covered by the general presumption of confidentiality from which the documents relating to its investigations may benefit, OLAF should have taken a position in the grounds of that decision on whether the period which elapsed between the date of transmission of its report to the Commission and the Venice Public Prosecutor’s Office and the date of adoption of the contested decision was to be regarded as reasonable.
52 Furthermore, while it may be presumed that OLAF considered that, in the present case, the period which had elapsed since the transmission of its final report to the Commission and the Venice Public Prosecutor’s Office was not unreasonable, the reasons for such an interpretation are not apparent from the grounds of the contested decision.
53 Therefore, it must be held that, in the absence of the information referred to in paragraphs 41 to 52 above, the applicant was not in a position, on reading the contested decision, to understand the reasons why OLAF, on the date of adoption of the contested decision, considered that the documents requested were covered by the general presumption of confidentiality from which the documents concerning its investigations may benefit.
54 In the third place, with regard to the incomplete nature of the reasoning contained in the contested decision, that decision does not enable the Court to assess the merits of the second plea in law, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001, and nor, therefore, to exercise its power of review of legality, in so far as that provision forms the basis of the ratio decidendi for the contested decision.
55 By the second plea of the application, the applicant claimed that OLAF had not established the existence of a presumption of confidentiality of the documents requested on the basis of the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 and that it should have granted it access to the documents requested, in view of the Commission’s intention, manifested in the pre-information letter of 11 March 2021, to proceed with the recovery of the sum of EUR 417 234.68 in an allegedly unlawful manner.
56 In the defence, the Commission disputed the applicant’s assertions, arguing, inter alia, that the general presumption of confidentiality covering OLAF’s final reports was applicable for as long as the follow-up actions to OLAF’s investigations were ongoing and that, as regards the Italian judicial authorities, they were no doubt carrying out such follow-up actions on the date of adoption of the contested decision.
57 However, as can be seen from paragraphs 41 to 46 above, it is not apparent from the grounds of the contested decision that OLAF, at the time of adopting that decision, considered that the recommendations of the final investigation report had given rise to follow-up actions on the part of both the Commission and the Venice Public Prosecutor’s Office. The contested decision does not refer to either the pre-information letter of 11 March 2021 or the possible opening of an investigation by the Venice Public Prosecutor’s Office.
58 In that regard, it should be borne in mind that there is neither a right of the EU institutions to remedy before the EU Courts their insufficiently reasoned decisions, nor an obligation on the part of the latter to take into account additional explanations provided by the author of the measure in question only during the proceedings in order to assess whether the obligation to state reasons has been satisfied. Such a state of law would risk blurring the division of powers between the administration and the EU Courts, weakening the review of legality and jeopardising the exercise of the right of appeal (judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 58).
59 Furthermore, even if it is accepted that the additional explanations provided by the Commission in the course of the proceedings may be regarded not as supplementary reasons for the contested decision, but as clarifications necessary to fully understand the analysis underpinning OLAF’s reasoning, in the light of the applicant’s arguments, it must nevertheless be stated that the Commission neither adopted a position on whether the pre-information letter of 11 March 2021 constituted a follow-up action entailing the closure of the investigation nor, if so, set out the reasons why the mere forwarding of the OLAF report to the Venice Public Prosecutor’s Office had the effect of extending the general presumption of confidentiality. Lastly, in its written submissions, the Commission did not adopt a position on the question whether, on the date of adoption of the contested decision, a reasonable period had elapsed since the documents requested were sent to the Commission and the Venice Public Prosecutor’s Office.
60 Consequently, the Court is not in a position to assess whether, on the date of adoption of the contested decision, OLAF was legally entitled to rely on the general presumption of confidentiality to which the documents concerning its investigations may be subject under the third indent of Article 4(2) of Regulation No 1049/2001.
61 In the light of the foregoing considerations, it must be held that the contested decision does not contain an adequate statement of reasons in so far as it is based on the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001.
The statement of reasons for the contested decision in so far as it is based on the protection of the decision-making process
62 As regards the exception relating to the protection of the decision-making process, the first subparagraph of Article 4(3) of Regulation No 1049/2001 provides that ‘access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure’.
63 The second subparagraph of Article 4(3) of Regulation No 1049/2001 provides that ‘access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure’.
64 It is thus only for part of the documents for internal use, namely those containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, that the second subparagraph of Article 4(3) of Regulation No 1049/2001 allows access to be refused even after the decision has been taken, where their disclosure would seriously undermine the decision-making process of that institution (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 79 and the case-law cited; judgment of 15 January 2013, Strack v Commission, T‑392/07, not published, EU:T:2013:8, paragraph 235).
65 Therefore, the application, by an institution to which a request for access to a document has been made, of the second subparagraph of Article 4(3) of Regulation No 1049/2001 presupposes that that institution must explain the specific reasons why it considers that the closure of the administrative procedure does not preclude the refusal of access from remaining justified having regard to the risk of seriously undermining its decision-making process (see, to that effect, judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 82 and the case-law cited).
66 In the present case, the contested decision states that, in its recent case-law, the Court recognised a general presumption of non-accessibility to documents forming part of OLAF’s files and found that making documents concerning OLAF investigations accessible to the public under Regulation No 1049/2001 was likely to seriously jeopardise the purpose of the investigation and the Commission’s decision-making process.
67 Thus, according to the grounds of the contested decision, disclosure of the documents requested would seriously undermine OLAF’s decision-making process, since it would severely affect the full independence of its future investigations and their objectives by revealing its strategy and its working methods.
68 In that regard, first, it should be noted that the statement of reasons for the contested decision does not identify the Commission’s decision from which it might be concluded that the administrative procedure to which the documents requested relate was closed.
69 In particular, the contested decision does not state whether the decision closing the process of drafting the documents requested corresponds to the letter of 4 December 2020, by which OLAF informed the applicant of the transmission of those documents to the Venice Public Prosecutor’s Office and to the Commission’s DG for International Cooperation and Development, or to the adoption by the Commission of one of the follow-up actions recommended in OLAF’s final report, such as commencement of the procedure for recovery of the sum of EUR 504 434.68 or flagging of the applicant in the EDES database.
70 Second, it must be held that the grounds of the contested decision reproduced in paragraphs 66 and 67 above are in no way substantiated by detailed evidence, in the light of the specific content of the documents requested, making it possible to understand the reasons why their disclosure would have been likely to seriously undermine the Commission’s decision-making process.
71 Lastly, it may be considered that the Commission intended to rely on the exception under the second subparagraph of Article 4(3) of Regulation No 1049/2001 as a consequence of the general presumption of confidentiality arising from the third indent of Article 4(2) of that regulation, to which the documents related to OLAF’s investigation procedures may be subject.
72 However, in such a case, it must be held that, since the contested decision is not sufficiently reasoned in so far as it is based on the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, as is apparent from paragraph 61 above, as a result nor is it sufficiently reasoned in so far as it is based on the exception under the second subparagraph of Article 4(3) of that regulation.
73 In the light of the foregoing considerations, it must be held that the contested decision does not contain an adequate statement of reasons in so far as it is based on the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049/2001.
The statement of reasons for the contested decision in so far as it is based on the protection of privacy and the integrity of the individual
74 As regards the exception relating to the protection of privacy and the integrity of the individual, provided for in Article 4(1)(b) of Regulation No 1049/2001, it is apparent from the contested decision that that ground is incidental to and circumscribed by reference to the main ground contained in that decision and is based on the general presumption of confidentiality to which the documents concerning OLAF investigations may be subject. Thus, although that ground justifies OLAF’s position that the documents requested could not be the subject of full disclosure, it does not make it possible to determine the reason why OLAF refused partial access to those documents.
75 Consequently, the ground of the contested decision based on the exception relating to the protection of privacy and the integrity of the individual, provided for in Article 4(1)(b) of Regulation No 1049/2001, is not in itself sufficient to justify the refusal of access to the documents requested.
76 It follows from the foregoing considerations that none of the grounds set out in the contested decision provides sufficient justification to prevent the annulment of that decision, with the result that the present plea must be upheld, without it being necessary to examine the other pleas put forward by the applicant.
The claim that the Commission should produce the documents requested
77 The applicant asks the Court to order the Commission, pursuant to Article 91(c) and Article 104 of the Rules of Procedure of the General Court, to produce OLAF’s final report in order to ascertain, inter alia, whether the exception provided for in Article 4(1)(b) of Regulation No 1049/2001 justified the refusal of access, even partial, to the documents requested.
78 In that regard, Article 91(c) of the Rules of Procedure provides that measures of inquiry are to include, inter alia, a request for the production of documents to which access has been refused by an institution in proceedings relating to the legality of that refusal.
79 In addition, Article 104 of the Rules of Procedure states that where, following a measure of inquiry referred to in Article 91(c) of those rules, a document to which access has been refused by an institution has been produced before the Court in proceedings relating to the legality of that refusal, that document is not to be communicated to the other parties.
80 It should also be borne in mind that the Court is the sole judge of any need to supplement the information available to it concerning the cases before it (see judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 77 and the case-law cited) and that it is for the Court to assess the relevance of a request for a measure of inquiry to the subject matter of the dispute and the need to do so (see, to that effect, judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 111 (not published) and the case-law cited).
81 It is true that, when an applicant challenges the lawfulness of a decision refusing him or her access to a document on the basis of one of the exceptions provided for by Article 4 of Regulation No 1049/2001, claiming that the exception relied on by the institution concerned was not applicable to the document requested, the Court is generally obliged to order production of the document and to examine it, in compliance with the applicant’s judicial protection. Indeed, if it has not itself consulted the document concerned, the Court will not be in a position to assess in the specific case whether access to the document could validly be refused by that institution on the basis of the exception relied on and, consequently, to assess the lawfulness of a decision refusing access to that document (see, to that effect, judgment of 28 November 2013, Jurašinović v Council, C‑576/12 P, EU:C:2013:777, paragraph 27 and the case-law cited).
82 However, in the present case, it is apparent from the arguments put forward by the applicant that the request for an inquiry should be ordered by the Court in order to ascertain whether the exception provided for in Article 4(1)(b) of Regulation No 1049/2001 justified the refusal of access, even partial, to the documents requested, pursuant to Article 4(6) of Regulation No 1049/2001.
83 Pursuant to Article 4(6) of Regulation No 1049/2001, if only one part of the requested document is covered by one or more of those exceptions, the remaining parts of the document are to be disclosed.
84 It follows from the case-law that, where general presumptions of confidentiality apply to certain categories of documents, the documents covered by them fall outside the scope of the obligation to disclose, in full or in part, their content (see, to that effect, judgments of 13 March 2019, AlzChem v Commission, C‑666/17 P, not published, EU:C:2019:196, paragraph 70 and the case-law cited, and of 26 April 2016, Strack v Commission, T‑221/08, EU:T:2016:242, paragraph 168 and the case-law cited).
85 Thus, it is only if the applicant were to demonstrate the merits of the second plea, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001, that the Court would have to resolve the question whether the exception laid down in Article 4(1)(b) of that regulation justified the refusal of access, even partial, to the documents requested.
86 As is apparent from paragraph 60 above, given the inadequacy of the statement of reasons vitiating the contested decision, the Court is not in a position to determine whether or not OLAF was justified in relying on the general presumption of confidentiality under the third indent of Article 4(2) of Regulation No 1049/2001.
87 Consequently, since the Court cannot resolve the question whether the exception provided for in Article 4(1)(b) of Regulation No 1049/2001 justified the refusal of access, even partial, to the documents requested, the issuance of the measure of inquiry requested by the applicant would be unreasonable and the present form of order sought must be rejected.
Costs
88 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.
89 Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Annuls the decision of 26 April 2021, by which the European Anti-Fraud Office (OLAF) refused Eurecna SpA access to its final report and the annexes thereto at the end of investigation OC/2019/0766/B4;
2. Dismisses the action as to the remainder;
3. Orders the European Commission to pay the costs.
Delivered in open court in Luxembourg on 12 July 2023.
[Signatures]