Judgment of the General Court (Tenth Chamber), 15 December 2021
(Access to documents – Regulation (EC) No 1049/2001 – Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020) – Regulation (EU) No 1290/2013 – Documents concerning the research project ‘iBorderCtrl: Intelligent Portable Border Control System’ – Exception relating to the protection of the commercial interests of a third party – Partial refusal to grant access – Overriding public interest)
1. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Obligations of the institution concerned as regards the processing of an application for access – Obligation to carry out a full examination of applications for access once the initial application has been made – Scope
(European Parliament and Council Regulation No 1049/2001, Arts 7 and 8)
(see paragraphs 30-36)
2. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Assessment of the risk of the protected interest being undermined by one of those exceptions – No obligation for the institution to rely on a general presumption of confidentiality
(European Parliament and Council Regulation No 1049/2001, Art. 4(2)
(see paragraph 63)
3. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Application consistent with Regulation No 1290/2013 concerning Horizon 2020– the Framework Programme for Research and Innovation – Exceptions to the right of access to documents – Protection of the commercial interests of a given person – Reconciliation with protection of the confidentiality of documents
(European Parliament and Council Regulations No 1049/2001, Art. 4(2), first indent, and No 1290/2013, Art. 3)
(see paragraphs 66-71)
4. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the commercial interests of a given person – Scope – Information in research project documents which is not covered by the exception in question – Obligation to grant partial access to those documents
(European Parliament and Council Regulation No 1049/2001, Art. 4(2), first indent, and (6))
(see paragraphs 83-87, 117-122, 124, 131, 142, 147, 154, 166, 167)
5. Actions for annulment – Natural or legal persons – Interest in bringing proceedings – Action against a decision of an EU agency granting only partial access to the documents requested – Applicant obtaining, by his own efforts, access to the full version of a partially redacted document – Interest in bringing proceedings retained – No effect on the lawfulness of the contested decision or on judicial review
(Art. 263, fourth para., TFEU; European Parliament and Council Regulation No 1049/2001)
(see paragraphs 158-160)
6. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the commercial interests of a given person – Overriding public interest justifying the disclosure of documents – Burden of proof – Public interest in dissemination of the results of projects financed by EU funds ensured by means of legislative and contractual provisions
(European Parliament and Council Regulations No 1049/2001, Art. 4(2), first indent, and No 1290/2013)
(see paragraphs 187, 188, 192, 197-203)
7. Judicial proceedings – Costs – Unreasonable or vexatious costs – Applicant obtaining, by his own efforts, access to the full version of a partially redacted document – Account to be taken of that conduct when allocating costs
(Rules of Procedure of the General Court, Art. 135(2)
(see paragraph 209)
Résumé
In 2016, the European Research Executive Agency (REA) concluded a grant agreement with a consortium concerning a research project under the EU Framework Programme for Research and Innovation ‘Horizon 2020’, seeking to contribute to the management of the European Union’s external borders. The applicant, who is a natural person, requested, on the basis of Regulation No 1049/2001, (1) access to several documents relating to the various stages of development of that project which had been sent to the REA by the members of that consortium. The REA granted only partial access to the documents requested and justified the refusal to grant full access by the application of the exceptions provided for by Regulation No 1049/2001, in particular that relating to the protection of the commercial interests of the members of the consortium concerned. (2)
Hearing an action against the REA’s decision (3) to grant partial access to the documents requested, the General Court annulled that decision in so far as the REA, first, had failed to carry out a full examination of the application for access and, secondly, had not granted access to the information contained in the documents at issue which was not covered by the exception in question.
This case has allowed the Court to develop and supplement its case-law on access to documents in the context of the EU-funded research project, as well as its case-law on the requirement for a full examination of an application for access at the initial application stage. Moreover, it has given the Court the opportunity to answer questions not previously addressed concerning, in particular, the effect of Regulation No 1290/2013 (4) in the context of an application for access to documents made under Regulation No 1049/2001 and the consequences of conduct by an applicant consisting in obtaining, by his or her own efforts and before the Court rules on the action, access to the redacted parts of a document to which he had been granted only partial access.
Findings of the Court
First of all, the Court finds that, in this case, the REA infringed its obligation to carry out a full examination of all the documents referred to in the application for access, since that obligation applies, in principle, not only when dealing with a confirmatory application for access, but also when dealing with an initial application for access. Specifically, the REA failed to give a decision in respect of the initial application for access in so far as that application concerned access to documents relating to the authorisation of the project at issue, thereby clearly undermining the objectives pursued by Regulation No 1049/2001.
In that context, the Court notes that, first, the applicant expressly stated in his confirmatory application for access that that application was a follow up to his initial application for access, which, inter alia, concerned documents relating to the authorisation of the project at issue. Accordingly, there were no circumstances which would allow the REA to presume that the applicant had withdrawn that part of his application in his confirmatory application. Secondly, the applicant was not obliged, in his confirmatory application, expressly to challenge the REA’s failure, in its initial decision, to give a decision in respect of a part of the applicant’s original application. That failure had the consequence that the second stage of the procedure concerning the documents to which that failure relates was not initiated. Moreover, even though, in the event of a refusal of access, a person may submit a new application for access, a failure to give a decision in respect of part of an application for access cannot be equated with a refusal of access. Therefore, a possibility of submitting a new application cannot serve to remedy a failure by the institution concerned to examine fully the first application for access or constitute an argument for depriving the applicant of the possibility of bringing proceedings.
Next, the Court rules on the consistent application of Regulations No 1290/2013 and No 1049/2001 in this case. In that regard, it states that the rule laid down in Regulation No 1290/2013, according to which documents communicated as confidential in the framework of an action such as the project at issue are to be kept confidential, (5) must be taken into account when examining a third party’s application for access to those documents. The fact that, in this case, the parties to the agreement classified the documents communicated to the REA as confidential is an indication that the content of those documents is sensitive from the point of view of the interests of the members of the consortium. However, the classification of documents as confidential in the context of a project is not sufficient to justify application of the exception relating to the protection of commercial interests provided for by Regulation No 1049/2001. Accordingly, that classification does not release the REA, in the context of the specific and individual examination of the application for access to those documents, from its obligation to examine whether they fall partially or entirely within that exception.
Next, after verifying that the REA carried out a specific and individual examination of the documents requested, the Court concluded that the REA’s refusal to grant access to certain information contained in several of those documents was not justified by the protection of the commercial interests of the members of the consortium. The information in question is concerned, in particular, with general questions likely to arise irrespective of the specific design of the system and project developed by the members of the consortium and not with assessments relating to the specific legal and ethical implications of the project in question or to the solutions envisaged in developing the technologies or features of that project.
As regards the documents requested, or the parts of those documents in respect of which the REA correctly concluded that they were covered by the exception relating to the protection of the commercial interests of the members of the consortium, the Court finds that the applicant has not established the existence of an overriding public interest which would justify disclosure to the public of the information covered by that exception. (6)
In that context, in ruling in particular on the public interest in dissemination of the results of projects financed by EU funds, the Court notes that that interest is ensured by the introduction of legislative and contractual provisions for the dissemination of the results of projects funded under the Horizon 2020 programme and that the need to disclose the information covered by the exception concerned has not been demonstrated by the applicant. As regards legislative provisions, the Court points out that Regulation No 1290/2013 lays down both an obligation for participants in an action to disseminate the results of the project subject to certain restrictions and a right for EU institutions, bodies, offices and agencies and for Member States to access information concerning results generated by those participants. (7)
Finally, the Court notes that the fact that the applicant obtained, by his own efforts, access to the full version of a document which, in a partially redacted version, had been communicated to him by the REA and that he disseminated that full version on the internet does not call into question his interest in having the contested decision annulled in so far as the REA had refused access to the redacted parts of that document. That conduct has no bearing on the lawfulness of the contested decision in that respect or on the Court’s judicial review of it.
Nevertheless, the Court considers that the applicant, by acting in that way, failed to comply with the procedures laid down by EU law relating to access to documents and did not await the outcome of the dispute in order to ascertain whether or not he could lawfully obtain access to the full version of the document in question. Accordingly, the Court takes that conduct of the applicant into account in the allocation of costs, by ordering him to pay the costs he unreasonably caused the REA to incur.