Case T‑306/12

Darius Nicolai Spirlea

and

Mihaela Spirlea

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Article 4, paragraph 2, third indent — Requests for information sent by the Commission to Germany in the context of an EU Pilot procedure — Refusal of access — Obligation to carry out a specific, individual examination — Overriding public interest — Partial access — Obligation to state reasons)

Summary — Judgment of the General Court (Eighth Chamber), 25 September 2014

1.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal of access — Requirement that the institution should examine the documents specifically and individually — Possibility of relying on general presumptions applying to certain categories of documents — Limits

(Art. 11 TEU; Art. 15(3) TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2))

2.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the objectives of inspection, investigation and audit activities — Application to documents concerning an EU Pilot procedure — General presumption that the exception to the right of access applies — Lawfulness

(Art. 258 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent)

3.      Actions for failure to fulfil obligations — Right of the Commission to bring judicial proceedings — Establishment of the EU Pilot mechanism to detect possible failures to fulfil obligations under EU law — Lawfulness — No need for an express legal basis

(Art. 258 TFEU)

4.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the objectives of inspection, investigation and audit activities — Invocation of a general presumption that the exception applies to the documents requested — Rebuttable

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent)

5.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the objectives of inspection, investigation and audit activities — Overriding public interest justifying the disclosure of documents — Concept — Burden of proof

(European Parliament and Council Regulation No 1049/2001, Art. 4(2))

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 — Concept — Pursuit of an action in non-contractual liability — Not included — Private nature of such an interest

(European Parliament and Council Regulation No 1049/2001, Art. 4(2))

7.      Actions for annulment — Review of legality — Criteria — Account taken only of the factual and legal elements existing at the date on which the contested measure was adopted

(Art. 263 TFEU)

8.      Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Abstract statement — Inadmissibility

(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))

9.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to state reasons — Scope

(Art. 296 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4)

10.    Actions for annulment — Grounds — Action against a decision of an institution refusing access to documents under Regulation No 1049/2001 — Plea claiming infringement of a Commission notice concerning relations with the complainant in respect of infringements of Community law — Invalid plea in law

(Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001; Commission Notice 2002/C 244/03)

1.      It is open to EU institutions, in exceptional cases, to rely on general presumptions which apply to certain categories of documents, disclosure of which is requested under European Parliament and Council Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. The possibility of relying on general presumptions applying to certain categories of documents, instead of examining each document individually and specifically before refusing access to it, is no insignificant matter. The effect of such presumptions is not only that they restrict the fundamental principle of transparency laid down in Article 11 TEU, Article 15 TFEU and Regulation No 1049/2001, but also that they limit in practice access to the documents in question. Accordingly, the use of such presumptions must be founded on reasonable and convincing grounds.

Therefore, an EU institution which intends to rely on a general presumption must establish in each case whether the general considerations normally applicable to a particular type of document are in fact applicable to the document which it has been asked to disclose. In that regard, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the Commission must examine every document requested in the case individually. Such a requirement would deprive that general presumption of its proper effect, which is to permit the Commission to reply to a request for access in a global manner.

(see paras 48, 52, 82, 83)

2.      Where an EU institution requested to provide access to documents invokes the exception under the third indent of Article 4(2) of Regulation No 1049/2001, it may rely on a general presumption to refuse access to documents concerning the EU Pilot procedure, as a preliminary step to the possible opening of the formal phase of an infringement procedure under Article 258 TFEU. The similarities between the EU Pilot procedure and infringement procedures under Article 258 TFEU militate in favour of such recognition.

In the first place, a general presumption is, essentially, dictated by the need to ensure the proper conduct of such procedures and to ensure that their purpose is not undermined. In the context of such a procedure, there must be an atmosphere of mutual trust between the Commission and the Member State concerned in order to enable them to start a process of negotiation and compromise with a view to an amicable settlement of the dispute, without it being necessary to initiate an infringement procedure under Article 258 TFEU, which would be likely to lead to the dispute being brought before the Court.

In the second place, EU Pilot procedures and infringement procedures under Article 258 TFEU, and particularly the pre-litigation phase thereof, present similarities which justify the adoption of a common approach to both. First of all, both the EU Pilot procedure and the pre-litigation stage of the infringement procedure enable the Commission to perform its role as guardian of the FEU Treaty in the best possible way. The purpose of both procedures is to achieve compliance with EU law while giving the Member State concerned the opportunity to exercise its right of defence and avoiding judicial proceedings if possible. In both cases, it is for the Commission, when it considers that a Member State has failed to fulfil its obligations, to assess whether it is appropriate to act against that State. Secondly, the EU Pilot procedure, like the pre-litigation stage of the infringement procedure, is bilateral in nature, between the Commission and the Member State concerned. Finally, even though the EU Pilot procedure is not in all respects equivalent to the infringement procedure, it may nevertheless lead to it, since the Commission may, at the conclusion of an EU Pilot procedure, formally commence an infringement investigation by sending a letter of formal notice and may, possibly, apply to the Court for a declaration that the breach of obligations alleged against the Member State concerned has occurred.

(see paras 56, 57, 59-63)

3.      Even though no express provision for the EU Pilot procedure is made in the Treaty, that does not mean that it has no legal basis. First of all, the EU Pilot procedure must be understood as a procedure which stems from the powers that are inherent in the Commission’s duty to verify compliance by the Member States with EU law. Accordingly, a mechanism or procedure for the exchange of information prior to the initiation of an infringement procedure has always existed and is an indispensable means of carrying out initial factual verification and obtaining the initial evidence of an infringement of EU law. Secondly, the very purpose of the EU Pilot procedure is to provide a formal framework for the initial exchanges of information between the Commission and the Member States concerning possible infringements of EU law. That being so, even though its basis does not lie in Article 258 TFEU, the EU Pilot procedure provides a structure for the steps which the Commission has traditionally taken on receiving a complaint or when acting on its own initiative.

(see para. 66)

4.      As regards the exception to the right of public access to documents under the third indent of Article 4(2) of Regulation No 1049/2001, concerning protection of the purpose of inspections, investigations and audits, even where an institution relies on a general presumption in order to refuse access to the documents requested pursuant to that exception, interested parties may, if they wish, demonstrate that a given document disclosure of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned by virtue of the final clause of that provision.

(see paras 70, 90)

5.      As regards the exception to the right of public access to documents under the third indent of Article 4(2) of Regulation No 1049/2001, concerning protection of the purpose of inspections, investigations and audits, whilst the burden of proof, when applying that exception rests on the institution invoking it, in so far as concerns the last clause of Article 4(2) of the regulation, it is, by contrast, for the party alleging an overriding public interest, within the meaning of that clause, to prove that interest.

Moreover, it is for the person alleging the existence of an overriding public interest within the meaning of Article 4(2) of that regulation to state the specific circumstances which justify the disclosure of the documents concerned. A statement of purely general considerations is not sufficient to establish that an overriding public interest outweighs the reasons justifying a refusal to disclose documents pursuant to the final clause of Article 4(2). Similarly, the overriding public interest capable of justifying the disclosure of a document need not necessarily be distinct from the principles which underlie that regulation.

(see paras 91-93, 97)

6.      An interest in obtaining documentary evidence to support an action for damages before a national court cannot be regarded as constituting an overriding public interest for the purposes of the final clause of Article 4(2) of Regulation No 1049/2001, but must be regarded as a private interest.

(see para. 99)

7.      See the text of the decision.

(see para. 100)

8.      See the text of the decision.

(see paras 107, 108)

9.      See the text of the decision.

(see paras 114-116)

10.    Commission Notice 2002/C 244/03 on relations with the complainant in respect of infringements of Community law provides no legal basis for assessing the lawfulness of a decision of an EU institution refusing access, under Regulation No 1049/2001, to documents concerning the EU Pilot procedure. It lays down no rules governing access to documents in the context of infringements procedures or EU Pilot procedures and confers no rights on complainants in that context. On the contrary, it simply states that, in the area of infringement proceedings, access to documents is to be sought in accordance with Regulation No 1049/2001. That being so, the communication can have no effect on the assessment of requests for access to documents made under Regulation No 1049/2001.

(see para. 130)