ORDER OF THE GENERAL COURT (First Chamber)
8 November 2011 (*)
(Measures of inquiry – Production of documents – Request for information – Measures of organisation of procedure)
In Case T‑167/10,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogniannakis and M. Dermitzakis, lawyers,
applicant,
v
European Commission, represented by E. Manhaeve and C. ten Dam, acting as Agents,
defendant,
APPLICATION for (i) annulment of the Commission’s decision of 27 January 2010 refusing access to the requests for quotations relating to Lot 3A of tendering procedure DIGIT/PO/2005/013 – ESP-DESIS and (ii) annulment of the Commission’s decision of 11 March 2010 refusing access to requests for quotations relating to all the other lots covered by that tendering procedure, all the lots covered by the tendering procedures DI/0005 ESP and ADMIN/D12/PO/2003/192 ESP‑DIMA and by Framework Contract BUDG/0101,
THE GENERAL COURT (First Chamber),
composed of J. Azizi, President, E. Cremona and S. Frimodt Nielsen (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Having regard to Article 65(b) and to the second and third subparagraphs of Article 67(3) of the Rules of Procedure of the General Court,
Having regard to Article 64(3) of the Rules of Procedure,
Whereas:
The present action seeks the annulment of two Commission decisions, dated 27 January and 11 March 2010 respectively, refusing access to the requests for quotations relating to a number of lots or contracts awarded following tendering procedures conducted by the Commission (‘the contested decisions’);
The contested decisions were adopted following examination by the Commission of two ‘representative samples’ of relevant documents: (i) 10 of the 900 requests for quotations to which the first request for access to documents relates and (ii) 57 of the approximately 6 000 requests for quotations to which the second request for access to documents relates;
It is apparent from the contested decisions that the reasons given by the Commission for refusing access to the requested documents apply to any and all of the various documents examined by the Commission;
The Court considers it necessary, for the purposes of the proceedings, first, to examine the documents on the basis of which the Commission made its decision –namely, the various requests for quotations which make up the two ‘representative samples’ – and, secondly, to request information from the Commission on a number of points regarding the manner in which it proceeded and the reasons that it gives to justify the approach set out in the contested decisions;
The Court also considers it necessary, given the fact that, on conclusion of the procedures which led to the adoption of the contested decisions, the applicant was refused access to the documents making up the ‘representative samples’, to order production of the above documents under the procedure laid down in the third subparagraph of Article 67(3) of the Rules of Procedure;
The Court finally considers it necessary, on the basis of the second subparagraph of Article 67(3) of the Rules of Procedure, to obtain some further clarification regarding the information contained in the requested documents.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The Commission shall, within four weeks of the notification of the present order, produce the 67 (10+57) documents which make up the two ‘representative samples’ taken into account in the contested decisions.
2. The documents referred to in point 1 will not be communicated to the applicant.
3. On the basis of two documents from the first ‘representative sample’ and six documents from the second ‘representative sample’, the Commission shall respond within the time-limits specified above to the following requests for information:
(a) In the case of each of the three exceptions relied on in the contested decisions, and for each document concerned, precisely which parts of that document fall within the exception?
(b) To which information could partial access have been allowed, as mentioned by the Commission in paragraph 21 of its rejoinder?
(c) Which information, if any, is already publicly available (for example, because it comes from the call for tenders published by the Commission)?
4. The responses to the requests for information referred to in point 3 will be considered confidential and will not be communicated to the applicant at this stage of the proceedings.
5. As regards the documents referred to in point 1, the Commission shall, within the time-limits specified above, respond to the following requests for information by drafting its responses in such a way that they can be communicated to the applicant:
(a) On the basis of which criteria was the ‘representative sample’ chosen?
(b) How do those criteria ensure that, in carrying out the evaluation on the basis of the ‘representative samples’, no ‘atypical’ document was overlooked?
6. With regard to the documents produced by the applicant in Annex 6 to the reply, the Commission is requested to respond, within the time-limits specified above, to the following requests for information made by way of measures of organisation of procedure:
(a) Are the documents produced by the applicant in Annex 6 to the reply among the documents to which access was refused in the present case?
(b) If so, the Commission shall identify, for each document submitted by the applicant in Annex 6 to the reply: (i) in the case of each of the three exceptions relied on in the contested decisions, the information which might, by analogy, fall within that exception; (ii) the information to which, by analogy, partial access could have been allowed; and (iii) the information, if any, which is already publicly available (for example, because it comes from the call for tenders published by the Commission).
(c) In the event that the documents produced in Annex 6 to the reply are not among those to which access was refused in the present case, could those documents be considered to be similar or of the same nature? If not, what are the principal differences between the documents produced and the documents requested by the applicant in its requests for access to documents?
7. The Commission is requested to identify clearly the documents and information that it submits by reference to the points of the operative part to which the various documents and information relate.
8. Costs are reserved.
Luxembourg, 8 November 2011.