JUDGMENT OF THE GENERAL COURT (First Chamber)
6 December 2012 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Requests for quotation – Refusal to grant access – Action for annulment – Period allowed for commencing proceedings – Point from which time starts to run – Admissibility – Exception relating to the protection of the economic policy of the European Union – Exception relating to the protection of the commercial interests of a third party – Exception relating to the protection of the public interest in the field of public security – Obligation to state the reasons on which a decision is based)
In Case T‑167/10,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis 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 quotation relating to Lot 3A of tendering procedure DIGIT/PO/2005/113 – ESP-DESIS (OJ 2005/S 252-248566) and (ii) annulment of the Commission’s decision of 11 March 2010 refusing access to requests for quotation relating to all the other lots covered by that tendering procedure, all the lots covered by the tendering procedures DI/0005 ESP (OJ 2001/S 53‑036539) and ADMIN/DI/2/PO/2003/192 ESP-DIMA (OJ 2003/S 249-221337) and by Framework Contract BUDG/0101,
THE GENERAL COURT (First Chamber),
composed of J. Azizi, President, V. Vadapalas and S. Frimodt Nielsen (Rapporteur), Judges,
Registrar: J. Weychert, Administrator,
having regard to the written procedure and further to the hearing on 26 June 2012,
gives the following
Judgment
Background to the dispute
Administrative procedure relating to the first contested decision
1 By letter of 14 August 2009, communicated by fax and signed by M.D., a member of its legal team, the applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, asked the Commission of the European Communities for access to ‘all the [requests for quotation] related to Lot 3A of the ESP‑DESIS contract’.
2 By letter of 3 September 2009, sent by post to M.D., the Commission acknowledged receipt of that application and stated that it would be examined in the light 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).
3 By letter of 18 September 2009, sent by post to one of the managing directors of the applicant, the Commission refused to grant access to the documents requested, stating that those documents were covered by the exceptions provided by Regulation No 1049/2001, in particular by the fourth indent of Article 4(1)(a) and by the first indent of Article 4(2) of that regulation.
4 By letter of 9 October 2009, sent by fax and signed by M.D., the applicant submitted to the Commission a confirmatory application for access to the documents together with a request for access to other documents.
5 By e-mail of 20 November 2009, the Commission acknowledged receipt of that application.
6 By letter of 27 January 2010, sent by e-mail (‘the first contested decision’), the Commission refused to disclose any of the documents requested on the ground that they were covered by a number of exceptions provided by Regulation No 1049/2001.
Administrative procedure relating to the second contested decision
7 By the letter of 9 October 2009 mentioned in paragraph 4 above, sent by fax and signed by M.D., the applicant asked the Commission for access to another series of documents, namely ‘all [requests for quotation] pertaining to all lots of the following contracts: ESP, ESP-DIMA, ESP‑DESIS, OPOCE’s Framework Contracts No 6011, 6102, 6103, 6020, 10042, 6121, 6031 and 10030 and DG BUDGET’s Framework Contract No BUDG/0101’.
8 By e-mail of 20 November 2009, the Commission acknowledged receipt of that application and stated that it would be examined in the light of Regulation No 1049/2001. Given the various departments involved, the application was divided up into a number of sections. One of those sections was assigned to the Publications Office of the European Communities (Office des publications des Communautés européennes) (OPOCE) under the reference GESTDEM 2009/4890. That section is not part of the subject-matter of the present case.
9 By letters of 11 December 2009, sent by post to one of the managing directors of the applicant and to a member of its staff, the Commission’s Directorate-General (‘DG’) for ‘Informatics’ and its DG for ‘Budget’ refused access to the documents requested which were in their possession, each of them stating for its own part – but on the basis of the same reasoning – that those documents were covered by the exceptions provided by Regulation No 1049/2001, in particular by the first and fourth indents of Article 4(1)(a) and by the first indent of Article 4(2) of that regulation.
10 By letters of 31 December 2009, the applicant submitted two confirmatory applications to the Commission for access to the documents requested.
11 By letter of 11 March 2010, sent by e-mail to M.D. (‘the second contested decision’), the Commission refused to disclose any of the documents requested from the DG for ‘Informatics’ or the DG for ‘Budget’, on the ground that they were covered by a number of exceptions provided by Regulation No 1049/2001.
Content of the first and second contested decisions
12 The documents which form the subject-matter of the first and second contested decisions are request forms, also known as application forms or requests for quotation.
13 In the first and second contested decisions, the Commission states that each of those request forms consists of a cover page and an annex describing the services to be provided. Those services may form the subject-matter of a ‘Time & Means’ order, which concerns a number of days of work performed at the Commission’s premises, a fixed price order, which concerns a defined work, or a ‘Quoted Time & Means’ order, which concerns a number of days of work for defined subtasks. Those orders are initiated by the Commission via a request form sent to the contractor who, in response, indicates whether or not he is submitting a proposal to the Commission. The process culminates in the signature of a specific contract or in the withdrawal of the request form.
14 The first and second contested decisions display similar reasoning.
Scope of the requests for access and the use of samples
15 First, the Commission defines the scope of the requests for access. It states, in that regard, that it has decided to examine those requests on the basis of a ‘representative sample of the [documents]’.
16 In the first contested decision, the Commission notes that, since the corresponding request concerns around 900 request forms, it has decided to carry out a preliminary assessment on the basis of a sample, which it believes to be representative in terms of DGs concerned and kinds of orders, in order to establish whether those documents can be made public. That sample consists of 10 request forms which are listed in that decision.
17 In the second contested decision, the Commission notes that, as the corresponding request concerns around 6 000 request forms, it has decided to carry out a preliminary assessment on the basis of a representative sample, which it believes to be representative in terms of DGs concerned and kinds of orders, in order to establish whether those documents can be made public. That sample consists of 57 request forms, a list of which can be found annexed to that decision.
18 In both of those decisions, the Commission indicates that, following a careful assessment of the documents contained in the samples, it has come to the conclusion that no access can be granted under Regulation No 1049/2001. As regards the documents not included in the samples, the Commission has taken the view that, since those documents are of a similar nature to the documents examined in the samples, access to those documents cannot be granted even though no individual examination has been performed.
19 Three exceptions provided by Regulation No 1049/2001 are invoked in support of those assertions. They are the exception provided by the fourth indent of Article 4(1)(a) (protection of the economic policy of the European Union), by the first indent of Article 4(2) (protection of commercial interests) and by the first indent of Article 4(1)(a) (protection of public security) of that regulation.
Need to protect the economic policy of the European Union
20 The reasoning set out in the first and second contested decisions on that subject is as follows:
‘Article 4(1)(a) … of [Regulation No 1049/2001] foresees that “[t]he institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards ... the ... economic policy of the Community ... . ”.
Fair and undistorted competition is a major public interest within the economic policy of the European Union …
Against this background, disclosure of the [requests for quotation] would also distort the competition in the IT sector, at least concerning Commission future contracts, as the prices of the specific tasks could be deduced from the description of these tasks combined with the identity of the sub-contractor and the total price which are already in the public domain. This could very well be used by tenderers in future calls for tenders to submit manipulated offers, thereby distorting the competition in the sector concerned …
Therefore, [the Commission considers] that the exception related to the protection of the public interest as regards the economic policy of the Union applies to the requested [requests for quotation], as their disclosure would undermine this policy.’
Need to protect commercial interests
21 The reasoning set out in the first and second contested decisions on that subject is as follows:
‘Article 4(2), first indent, of [Regulation No 1049/2001] foresees that “[t]he institutions shall refuse access to a document where disclosure would undermine the protection of commercial interests of a ... legal person ... ”.
The relevant legal provisions related to transparency about expenditure incurred by the EU Institutions confirm that such commercial interests exist in this area and need to be duly taken into account. More particularly:
– Article 30(3) of [Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (“the Financial Regulation”)] requires the Commission to make available information on the beneficiaries of funds deriving from the budget, but “... with due observance of the requirements of confidentiality”.
– Article 118(4), 5th subparagraph, of [Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1) (“the Implementing Rules”)] lays down the information which the EU Institutions have to make public in relation to the performance of [specific contracts] based on a [framework contract]. It must be noted that this information does not include documents such as the [requests for quotation], which are preliminary to the conclusion of [specific contracts]. In any event, this provision must be read in conjunction with … Article 90(1), 3rd subparagraph, of the Financial Regulation. Accordingly, where disclosure of certain information would harm legitimate business interests, it cannot be published.
Against this background, the contractors’ commercial interests, but also those of the Commission itself, need to be considered in turn.
[1.] Protection of the contractors’ commercial interests
The [requested requests for quotation] are part of a dialogue between the Commission and its contractors for the execution of specific tasks within a [framework contract]. [Requests for quotation] are an iterative process leading to a final offer for a specific task to be fulfilled within that [framework contract]. Each of these exchanges includes the description of the specific tasks and refers to the contractor’s know-how, its expected input and proposed methodology as well as to price information.
Disclosure to the general public of such information relating to the execution of tasks within the [framework contract] at hand would clearly undermine the protection of the relevant contractors’ expertise, strategy and creativity and thus their commercial strength, not only as an undertaking in general but also more specifically as co-contractors of the Commission.
In addition, according to a well established principle of law, contractual relations are to be governed by the principle of good faith. Such good faith also entitles the contractors to expect from the Commission that it will respect the confidentiality about the performance of an ongoing contractual relation where such confidentiality is necessary for protecting their legitimate rights.
In this respect, it should be noted that the exception [relating to] “commercial interests” in [Regulation No 1049/2001] is an expression of the Commission’s obligation of professional secrecy which flows from Article 339 TFEU and means that the Commission must take all necessary precautions to ensure that the protection of information about undertakings covered by professional secrecy and other confidential information is not undermined. It applies in particular to “… information about undertakings, their business relations or their cost components”.
This is all the more relevant when the execution of such a relation involves expertise, creativity and very specific information on prices, as it is within the ambit of a [framework contract], i.e. [a contract which is] undetermined as to the specific conditions for the execution of specific tasks.
Moreover, in respect of the above-mentioned reasoning relating to the distortion of the competition which would occur if manipulated offers were to be submitted, such distortion would, also, have an adverse effect on the commercial interests of the undertakings participating in calls for tenders in the sector concerned.
[2.] Protection of the Commission’s own commercial interests
In order to fulfil its own needs of goods and services, the Commission acts both as a private and a public entity. Indeed, acting as a private entity, the Commission must benefit, as any other private operator, from the best conditions offered by undertakings in an open market. Being a public entity, the Commission must ensure that the public money is spent in accordance with the principle of sound financial management, inter alia, by finding the lowest bidder.
If the [requests for quotation] were to be disclosed, specific prices would be disclosed. These prices would reasonably, in a highly competitive economy, foster the alignment of prices in the sector, undermining, therefore, the sound spending of the Budget and the interests of the Commission.
Consequently, and in addition to the above-mentioned exceptions relied upon, the exception relating to the protection of commercial interests also applies for protecting the commercial interests of the Commission and, therefore, [access to] the whole of the [requests for quotation] must be refused.’
Need to protect public security
22 The reasoning set out in the first and second contested decisions on that subject is as follows:
‘Article 4(1)(a) …. of [Regulation No 1049/2001] provides that “[t]he institutions shall refuse access to a document where disclosure would undermine the protection of ... the public interest ... as regards public security”.
Since the [requests for quotation] concern a wide range of IT systems, the disclosure of the whole of the [requests for quotation] would reveal, in combining data, the technical functioning and potential weaknesses of the systems to be exploited by intruders.
Revealing technica1 functionalities and facilitating deduction of possible weaknesses would seriously compromise the IT systems’ integrity on which the Commission relies in order to carry out its duties in various fields of EU activity, which include the participation of other bodies and Member States through the setting-up of various networks.
Such outcome would also result in harm to be caused to other public or private interests, e.g. international relations if confidential information relating to third countries would be unlawfully disclosed or to the protection of personal data.
Therefore, in order to protect the integrity of [the] Commission’s IT systems, access to the whole of the [requests for quotation] cannot be granted also on the basis of the exception provided for in Article 4(1)(a), first indent, of [Regulation No 1049/2001].’
Assessment in the light of the overriding public interest
23 In that regard, the Commission concluded the following in both contested decisions:
‘In the present case, there are no elements at [the Commission’s] disposal which could indicate the existence of an overriding public interest in the sense of [Regulation No 1049/2001] that would outweigh the need to protect the commercial interests of the contractors and [its own commercial interests], as explained above.’
Partial access to the documents requested
24 Lastly, the Commission examines the possibility of granting partial access to the documents requested and makes the following observations:
‘Pursuant to Article 4(6) of [Regulation No 1049/2001], “[i]f only parts of the requested document[s] are covered by any of the exceptions, the remaining parts of the document[s] shall be released”.
[The Commission has] considered the possibility of granting partial access to the requested [requests for quotation]. However, for the reasons explained above, no meaningful partial access is possible without harm for the interests described above. Consequently, [the Commission has] come to the conclusion that the [requests for quotation] within the [framework contract] at hand are all covered in their entirety by the invoked exceptions to the right of public access.’
Procedure and forms of order sought
25 By application lodged at the Registry of the General Court on 7 April 2010, the applicant brought the present action.
26 By order of 8 November 2011, the General Court (First Chamber) ordered the Commission to produce certain documents under the procedure set out in the third subparagraph of Article 67(3) of the Rules of Procedure of the General Court and to respond to a number of requests for information, some of which related to the aforementioned documents and others to the documents produced by the applicant in Annex 6 to the reply, which were similar in nature to the documents forming the subject-matter of the present case.
27 The Commission produced the documents requested and responded to the requests for information on 9 December 2011.
28 As part of the measures of organisation of procedure, on 10 February 2012 the Court asked the applicant to submit any observations it might wish to make on the Commission’s responses which had been communicated to it and which did not fall within the scope of the procedure set out in Article 67(3) of the Rules of Procedure, taking into account in particular the fact that the Commission considered that the documents produced by the applicant in Annex 6 to the reply were comparable to the documents to which it had been denied access by the first and second contested decisions.
29 The applicant replied to those questions on 29 February 2012.
30 At this stage, as a member of the First Chamber of the General Court was unable to sit, the President of the General Court designated another Judge to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure.
31 On 2 June 2012, the applicant sent three documents to the Court, which were held to be new evidence. Those documents were added to the case‑file and the Commission was informed that it would have an opportunity at the hearing to take a position regarding that evidence.
32 The parties’ oral arguments and their answers to the questions put by the Court were heard at the hearing of 26 June 2012. On that occasion, the Commission agreed to send the applicant a copy of the summary table which it had submitted in response to a request for information made in the order of 8 November 2011 in order to identify the information falling within the scope of each of the three exceptions invoked in the first and second contested decisions and the information to which the partial access evoked in the rejoinder could have been allowed. That information, submitted following the examination of two of the documents taken into consideration in order to adopt the first contested decision, and six of the documents taken into consideration in order to adopt the second contested decision were intended to enable the applicant to understand the nature of the information which the Commission wished to protect without enabling it to gain specific knowledge thereof.
33 The applicant claims that the Court should:
– annul the first and second contested decisions;
– order the Commission to pay the costs and other expenses incurred by the applicant in respect of the action, even if the action is dismissed.
34 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Admissibility of the action as regards the first contested decision
35 The Commission submits that the action must be declared inadmissible in so far as it concerns the first contested decision. As a result of the ‘notification’ to the applicant, carried out by e-mail on the date of that decision’s adoption, that is, 27 January 2010, the two-month period for bringing an action for annulment came to an end, taking into account the extension on account of distance, on 6 April 2010. The action is therefore out of time, since it was brought the following day, that is, 7 April 2010.
36 In that regard, it should be borne in mind that, under the sixth paragraph of Article 263 TFEU, an action for annulment must be brought within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. It is also apparent from the third paragraph of Article 297(2) TFEU that decisions which specify to whom they are addressed, as is the situation in the present case, are to be notified to those to whom they are addressed and are to take effect upon such notification. In addition, under Article 102(2) of the Rules of Procedure, the prescribed time‑limit for commencing proceedings must be extended on account of distance by a single period of 10 days.
37 According to settled case-law, that time-limit for bringing an action for annulment is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the judicature of the European Union must ascertain of its own motion whether it has been observed (Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21, and Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).
38 In addition, in the interests of the parties and third parties who might be concerned, the principle of legal certainty requires the points in time at which any prescribed period begins and ceases to run to be clearly defined and strictly complied with (Case 44/81 Germany and Bundesanstalt für Arbeit v Commission [1982] ECR I‑1855, paragraph 16, and Case T‑54/90 Lacroix v Commission [1991] ECR II‑749, paragraph 29).
39 Furthermore, it is the responsibility of the party alleging that an action is out of time, in view of the time-limits fixed by the sixth paragraph of Article 263 TFEU and Article 102(2) of the Rules of Procedure, to provide evidence of the date on which the event causing time to begin to run occurred (Joined Cases T‑70/92 and T‑71/92 Florimex and VGB v Commission [1997] ECR II‑693, paragraph 74, and order in Case T‑263/97 GAL Penisola Sorrentina v Commission [2000] ECR II‑2041, paragraph 47).
40 In the present case, it should be noted that the term ‘notification’, used to describe the transmission by electronic means of the first contested decision, has a double meaning. That term covers both the action of bringing to the recipient’s attention a decision which concerns that recipient and the actual document used for that purpose, which inter alia allows evidence to be provided of the date on which that action took place.
41 The first aspect, that is, the Commission’s having brought the first contested decision to the applicant’s attention, is not disputed by the applicant, which simply claims that the communication by e-mail cannot be considered a ‘legal means of notification’. In the present case, even though the applicant made its initial application and its confirmatory application by fax and even though the Commission’s initial response was sent to the applicant by post, the applicant makes no objection to the fact that the first contested decision was communicated to it by e-mail. The applicant indicates, however, in that regard that the intended recipient of the e-mail may have become aware of the message which was sent to him in that way on 28 January 2010 after his return from a day spent taking part in a hearing before the General Court.
42 Having regard to current means of communication and despite the silence of Regulation No 1049/2001 on the matter, expressly envisaging, in respect of electronic methods, only the lodging of applications for access to documents (see Article 6(1) of Regulation No 1049/2001) without indicating the methods which may be used to communicate the response to the person making the application, e-mail may be considered a method by which to communicate a decision to its intended recipient. In that regard it should be noted that the e-mail address used by the Commission on that occasion (‘the first e-mail address’) was communicated to it by the applicant, which mentioned it at the foot of the fax acting as support for the confirmatory application.
43 The second aspect, relating to the evidence provided by the Commission to prove the date on which notification took place, is a matter of disagreement between the parties. In order to prove the date on which the notification of the first contested decision took place, the Commission is relying on a document entitled ‘delivery report’, which is in the form of an e-mail sent by a ‘System Administrator’ to an e-mail address which contains the applicant’s domain name preceded by the expression ‘wmail’.
44 The content of that delivery report can be divided into three parts.
45 The first part contains the name of one of the agents of the Commission, which permits the presumption that the delivery report was printed from that agent’s inbox. That information was confirmed by the person concerned at the hearing.
46 The second part contains data enabling different elements of the delivery report to be identified, namely its sender (‘From : System Administrator’); its intended recipient (an e-mail address containing the first letter of the first name of the person who sent the initial application and confirmatory application for access to the documents on the applicant’s behalf, followed by the first three letters of that person’s surname, bracketed together with the applicant’s domain name preceded by the expression ‘wmail’) (‘the second e-mail address’); the date on which it was sent (Sent : mercredi 27 janvier 2010 15:26) and its subject-matter (Subject : Delivered: Delivery report: Your confirmatory application for access to documents under Regulation (EC) N° 1049/2001 – GESTDEM 2009/4886).
47 The third part contains the actual text of the delivery report. That text indicates that the message sent to the first e-mail address, of which the subject-matter is ‘Your confirmatory application for access to documents under Regulation (EC) N° 1049/2001 – GESTDEM 2009/4886’, was delivered to the second e-mail address immediately, namely on 27 January 2010 at 15:26.
48 At the hearing, the parties were questioned on the evidential value which could be attributed to that delivery report. In particular, the parties were asked whether that document was capable of providing the same guarantees as those offered by the intended recipient’s signature or by the signature of a person recognised as competent for that purpose in the event of a notification carried out by an express delivery service with acknowledgment of receipt, the method generally used by the Commission to notify a decision to a company or an individual. In answer to those questions, the Commission indicated that it was not in a position to confirm that the delivery report relied on as evidence was not a document generated by its own services, but a document emanating from the recipient or an authorised third party. For its part, the applicant indicated, by referring in that regard to a document produced as an annex to the reply, that the content of the delivery report submitted by the Commission differed significantly, in both form and content, from the delivery report sent by its own IT system. It thus formally denies that the document originates from its system, as already shown by the fact that it was printed from the inbox of one of the agents of the Commission.
49 In light of the content of the delivery report produced by the Commission and taking into account the statements set out by the parties in that regard, it must therefore be held that the Commission is not in a position to establish that the first contested decision was brought to the attention of its intended recipient on 27 January 2010 as it claims. There are strong indications that the document mentioned above comes from the Commission’s IT system and there is no evidence enabling it to be established that the applicant’s IT system guarantees proper receipt of the e-mail by its intended recipient in the same way as, for example, the intended recipient’s signature or the signature of a person recognised as competent for that purpose in the event of a notification carried out by an express delivery service with acknowledgment of receipt.
50 In the present case, such proof could have been provided by, for example, a reply by e-mail sent by the intended recipient of the document.
51 Having thus failed to provide the evidence required in that regard, the Commission is not in a position to prove that the present action is out of time as regards the first contested decision. The plea of inadmissibility submitted in that regard must therefore be dismissed.
52 Incidentally, in response to the argument put forward by the Commission at the hearing that the ‘notification’ by e-mail in both the senses defined above is necessary in practice in order to enable the intended recipient to obtain a rapid response in accordance with the time-limits prescribed for that purpose by Regulation No 1049/2001, it should be noted that, in the present case, that would be tantamount to imposing a practice on the applicant which the Commission itself does not comply with. Indeed, the Commission has taken almost six weeks to send an acknowledgment of receipt to the intended recipient, that is, from 9 October 2009, the date on which the applicant’s fax submitting the confirmatory application was sent, in respect of which the applicant provides a transmission report of the same date, to 20 November 2009, the date on which the Commission sent the applicant an e-mail confirming receipt of its confirmatory application.
Substance
Summary of the arguments of the parties
53 In support of its action, the applicant puts forward two pleas in law.
54 The first plea in law, which is in three parts, alleges a failure to carry out an individual assessment of the documents requested and of the consequences which that may have had for the first and second contested decisions. In the first part, the applicant argues that the Commission infringed Regulation No 1049/2001 by failing to carry out an individual examination of each document covered by the applications for access in order to assess whether the exceptions relied on were applicable. In the second part, the applicant complains that the Commission has infringed Article 4(6) of Regulation No 1049/2001 by deciding not to grant partial access to any of the documents requested. In the third part, it also complains that the Commission did not seek to come to an equitable arrangement on the basis of Article 6(3) of that regulation.
55 In its written pleadings, the Commission observes that the first and second contested decisions are based on the analysis of samples allowing it to conclude that the same justification can be given for refusing access to all the documents requested. It also contends that those documents are manifestly covered in their entirety by a number of exceptions to the right of access. Partial access cannot therefore be granted.
56 The second plea alleges infringement of the various provisions relied on by the Commission in order to refuse access to the documents requested, namely the fourth indent of Article 4(1)(a) of Regulation No 1049/2001, which relates to the economic policy of the European Union, the first indent of Article 4(2) of that regulation, which relates to the protection of the commercial interests of a legal person, and the first indent of Article 4(1)(a) of that regulation, which relates to public security. According to the applicant, the reasons given to justify the application of those exceptions are too abstract and general. The information at issue does not compromise the rights of third parties. Nor is it capable of significantly undermining public security or a vital interest relating to the international relations of the European Union.
57 The Commission submits that the requests for quotation contain commercially sensitive information. By cross-checking, it is possible to ascertain the price proposed by a contractor or the price for a specific contract. In addition, those requests relate to a wide range of IT systems and the disclosure of all the related information would reveal the functioning and weaknesses of those systems. Malicious third parties could thus exploit or disrupt the proper functioning of the Commission’s IT systems.
Findings of the General Court
58 It is common ground that the refusal to grant access to the documents requested is based on the individual examination of only a part of those documents. The Commission thus indicates, in the first and second contested decisions, that it was after a ‘careful assessment’, first, of 10 requests for quotation out of the 900 or so referred to in the first application and, second, of 57 requests for quotation out of the 6 000 or so referred to in the second application that it had ‘come to the conclusion that no access could be granted’. The Commission also takes the view that access cannot be granted to the remainder of the requests for quotation given that those requests are of a similar nature to those which have been examined. There is, accordingly, it submits, no need for an individual examination of those documents (see paragraphs 16 to 18 above).
59 In the present case, the Commission’s reasoning is based, in essence, on the finding that the three exceptions relied on apply to ‘the requested [requests for quotation]’ or to ‘the whole of the [requests for quotation]’ and on the finding that ‘no meaningful partial access is possible without harm for the interests described above’. On those grounds, the Commission concludes that the requests for quotation in question are ‘all covered in their entirety by the invoked exceptions to the right of public access’ (see paragraphs 19 to 22 and 24 above).
60 In other words, based on an examination carried out on a limited number of documents, the Commission believes that it is entitled to refuse to disclose any of the documents requested. The grounds relied on in the first and second contested decisions thus apply to any one of those documents, whether or not it has been subject to an individual examination.
61 It follows that the lawfulness of the Commission’s approach, which consists of having examined only a sample of the documents requested and then applying the conclusions reached following that examination to the remainder of the documents, necessarily depends on whether or not those conclusions are well founded. If it is found that the grounds relied on in order to refuse to grant any access, including partial access, to the 67 documents which were examined do not meet the requirements laid down in that regard by Regulation No 1049/2001, that fact will be such as to entail the annulment not only of the Commission’s decision relating to the documents examined, but also of the decision relating to all the other documents requested.
62 In that regard, concerning whether or not the exceptions invoked in the first and second contested decisions are well founded, it should be noted that, in accordance with the first recital of Regulation No 1049/2001, that regulation reflects the intention expressed in the second paragraph of Article 1 EU – inserted by the Treaty of Amsterdam – of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 in the preamble to Regulation No 1049/2001, the right of public access to documents of the institutions is related to the democratic nature of those institutions. To that end, Regulation No 1049/2001 is intended, as is apparent from recital 4 in its preamble and from Article 1, to give the fullest possible effect to the right of public access to documents of the institutions (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑4723, paragraphs 33 and 34, and Case C‑506/08 P Sweden v MyTravel and Commission [2011] ECR I‑0000, paragraphs 72 and 73).
63 However, that right is none the less subject to certain limitations based on grounds of public or private interest. More specifically, and in reflection of recital 11 in the preamble thereto, Article 4 of Regulation No 1049/2001 provides that the institutions are to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision. However, since they derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly (see Sweden v MyTravel and Commission, paragraph 62 above, paragraphs 74 and 75 and the case-law cited).
64 Thus, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it is relying. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical (see Sweden v MyTravel and Commission, paragraph 62 above, paragraph 76 and the case-law cited).
65 A specific, individual examination of each document is also necessary where, even if it is clear that a request for access refers to documents covered by an exception, only such an examination can enable the institution to assess the possibility of granting the applicant partial access under Article 4(6) of Regulation No 1049/2001. In the context of applying the Code of conduct concerning public access to Council and Commission documents (OJ 1993 L 340, p. 41), the Court has, moreover, already considered an assessment of documents by reference to categories rather than on the basis of the actual information contained in those documents to be insufficient, since the examination required of an institution must enable it to assess specifically whether an exception invoked actually applies to all the information contained in those documents (see judgment of 30 January 2008 in Case T‑380/04 Terezakis v Commission, not published in the ECR, paragraph 87 and the case-law cited).
66 The arguments of the parties relating to the infringement of Article 4(6) of Regulation No 1049/2001, pursuant to which ‘[i]f only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released’, must be examined in the light of those principles.
67 In the present case, it should be noted that there is a contradiction between the position adopted by the Commission in the first and second contested decisions and in the defence, where it explicitly refuses to grant partial access to any of the documents requested by the applicant (see paragraph 24 above), and the position adopted by that institution in the rejoinder or, again, at the hearing.
68 Thus, initially, the Commission claimed in the defence, as it had in the first and second contested decisions, that all of the documents examined were covered in their entirety by the invoked exceptions and that no meaningful partial access could be granted as such access would harm the interests protected by those exceptions.
69 However, in its rejoinder, the Commission indicated that several types of information contained in the requests for quotation were not protected by the three exceptions invoked in the first and second contested decisions. At that stage, the Commission even acknowledged that that information could, in principle, be disclosed to the applicant through partial access to the documents requested. None the less, the Commission claimed that such partial disclosure would run contrary to what it terms ‘good administration’. According to the Commission, that information would ‘not be meaningful for the aim pursued by the applicant’, and realising that partial access would create a ‘disproportionate administrative burden’ for the Commission’s services.
70 Given that the argument expounded in the rejoinder did not correspond with the grounds set out in the first and second contested decisions for rejecting the possibility of granting partial access to the documents requested (see paragraph 24 above), the General Court ordered the Commission to produce the 67 documents which make up the two samples evoked in the first and second contested decisions and asked that institution to indicate, in particular, for two documents from the first sample and six documents from the second sample, which information was covered by each of the three exceptions invoked in the first and second contested decisions and which information could have been subject to partial access.
71 It is apparent from the Commission’s responses that a substantial part of each of the 67 documents examined by that institution is not covered by any of the three exceptions invoked in the first and second contested decisions and could have been disclosed to the applicant without harming the interests protected by those exceptions, which the Commission moreover acknowledged at the hearing.
72 To give just one example, as regards the first of the eight documents referred to in the summary table created by the Commission and communicated to the applicant at the hearing, it is apparent that only one page out of the 28 contained in that document, namely page 14 of the technical annex, is considered by the Commission as capable of being covered by the exception relating to the protection of public security, the only exception invoked in respect of that document. The other 27 pages of that document are thus not covered by any of the exceptions to the principle of access to documents.
73 It must be concluded that the Commission is manifestly not in a position to prove what it claims in the first and second contested decisions when it states that ‘no meaningful partial access is possible without harm for the interests described above’ and that it must, consequently, conclude that ‘the [requests for quotation] … are all covered in their entirety by the invoked exceptions to the right of public access’.
74 Therefore, the Commission was wrong to conclude that it was entitled to refuse partial access to any of the 67 documents examined by its services and that it could extend that conclusion to the remainder of the documents requested.
75 Accordingly, the first and second contested decisions must be annulled.
76 That finding is not undermined by the Commission’s assertion that a partial disclosure would be contrary to the principle of good administration since the information likely to be disclosed would not be meaningful for the aim pursued by the applicant and that realising that partial access would create a disproportionate burden of work for the Commission’s services, or by the fact that, at the hearing, the Commission indicated that it was prepared to grant partial access to the 67 documents which it had examined in order to adopt the first and second contested decisions, while observing that it would be disproportionate to require the institution to do the same for the remainder of the documents requested.
77 First of all, it should be noted that that argument put forward by the Commission following the adoption of the first and second contested decisions cannot be relied on in order to correct the grounds set out therein, which do not correspond to the content of the documents examined as apparent from the summary table created by the Commission and communicated to the applicant at the hearing.
78 Next, it must be stated that Article 4(6) of Regulation No 1049/2001 does not authorise the interpretation suggested by the Commission. First, that provision, like the entirety of the regulation, does not require that the person applying for access to the documents prove that the document requested is ‘meaningful’ to him. In addition, in any event, what is meaningful or meaningless to the applicant cannot be determined by the institution charged with replying to his request. Second, the provision at issue in the present case cannot be interpreted in such a way as to amount to exempting the institution concerned from an obligation which is expressly envisaged in Regulation No 1049/2001, namely disclosure of the parts of the document not covered by the exceptions provided by that regulation. It is clear from Regulation No 1049/2001 that the public must be given a right of access to documents which is as wide as possible and that exceptions to that right of access must be interpreted strictly.
79 Lastly, logically speaking, the Commission cannot claim to be entitled, in view of the large number of similar documents, to examine only a part of the documents requested using samples, for the purposes of ascertaining whether they should be disclosed to the public, and then to take the view – as it did at the hearing – that, if it emerges that that examination permits the conclusion that those documents can be disclosed in full or in part, that exercise is only valid for the documents examined. If the Commission intends to apply generally the impact of the result of that type of assessment of the documents examined to the documents which have not been examined, its findings must be valid in both situations: in the event of access being refused or in the event of access being granted.
80 Therefore, by refusing access to those documents or to those parts of the documents which, as it acknowledged at the hearing, could, following a specific individual examination of their content in the light of the exceptions relied on, have been disclosed to the applicant, the Commission committed an error of law which entails the annulment of the first and second contested decisions.
81 Moreover, the General Court is not convinced that the reasoning expounded by the Commission in the first and second contested decisions regarding the three exceptions invoked therein is capable of justifying, in the present case, the refusal to grant access to certain parts of the documents requested.
82 Regarding the first exception invoked, namely the fourth indent of Article 4(1)(a) of Regulation No 1049/2001, which enables the Commission to refuse access to a document where its disclosure would undermine the protection of the public interest as regards the economic policy of the European Union, it need only be observed that, if that policy is indeed intended, as the Commission indicates in the first and second contested decisions (see paragraph 20 above), to ensure fair and undistorted competition within the internal market, the fact remains that the explanations provided in that regard, in the first and second contested decisions, to justify applying that exception are not sufficient to establish how access to the documents requested could specifically and actually undermine that objective in a way that is reasonably foreseeable and not purely hypothetical.
83 Theoretically speaking, the Commission presumes that, if the public were to obtain the documents requested, tenderers interested in contracts likely to be concluded in the future could use that information to ‘submit manipulated offers … distorting the competition’. As a general rule, a tendering procedure where the prices quoted in the past for a corresponding service could be known by tenderers if they cross‑checked the information publicly available seems more likely to lead to a situation of genuine competition than to a situation where competition would be distorted.
84 In addition, practically speaking, it is apparent that the information which the Commission seeks to protect under that exception corresponds to the number of working days requested of the intended recipient of the request for quotation. The Commission itself takes the view that that information is capable of being protected under the exception mentioned above for only a part of the documents provided. For example, it is assumed that the information relating to the number of days of services provided must be protected for four of the eight documents referred to in the summary table communicated to the applicant at the hearing (documents 3.2, 3.4, 3.6 and 3.7), whereas, on the Commission’s own admission, that is not the case for three other documents in that table (documents 3.3, 3.5 and 3.8).
85 Regarding the second exception invoked, namely the first indent of Article 4(2) of Regulation No 1049/2001, which enables the Commission to refuse access to a document where its disclosure would undermine the protection of the commercial interests of a legal person, including intellectual property, unless there is an overriding public interest in disclosure, it should be noted that the documents requested come from the Commission and not its co-contractors. In that context, it is a priori difficult to see how those documents contain sensitive commercial data concerning third parties (see paragraph 21 above).
86 While it cannot be excluded that the Commission may claim, as such, protection of its own ‘commercial interests’, inter alia because it has commercial relations with third parties and because that protection includes ‘intellectual property’, the fact remains that, as regards the protection of those interests, the explanations provided in that regard in the first and second contested decisions (see paragraph 21 above) are not sufficient to establish how access to the documents requested could specifically and actually undermine that objective in a way that is reasonably foreseeable and not purely hypothetical. Moreover, since it is apparent that the information which the Commission seeks to protect under that exception corresponds to the number of working days requested of the intended recipient of the request for quotation evoked above, the reasoning expounded on that subject raises the same problem of consistency as the reasoning already evoked on the subject of the previous exception (see paragraph 84 above).
87 Regarding the third exception invoked, namely the first indent of Article 4(1)(a) of Regulation No 1049/2001, which enables the Commission to refuse access to a document where its disclosure would undermine public security, it must be borne in mind that the applicant has produced convincing evidence in response to the questions put by the General Court that some of the information which the Commission claims is capable of being covered by that exception is already available to the public. That evidence given by the applicant in respect of documents which are comparable to those forming the subject-matter of the first and second contested decisions, namely the documents presented in Annex 6 to the reply, applies by analogy to the similar information also contained in those documents forming the subject‑matter of the contested decisions.
88 In that context, the explanations provided in the first and second contested decisions (see paragraph 22 above) are not sufficient to establish how access to the documents requested could specifically and actually undermine public security in a way that is reasonably foreseeable and not purely hypothetical.
89 In any event, in order to annul the first and second contested decisions, it is sufficient to state that those decisions wrongly refuse to grant even partial access to the documents requested.
90 For the sake of completeness, it should be noted that, although, contrary to what the applicant claims, the Commission has not infringed Article 6(3) of Regulation No 1049/2001 which provides, not an obligation, but merely a possibility for the Commission to confer with the applicant with a view to finding a fair solution, where it is confronted with a request concerning a very large number of documents, an optional meeting of that kind could help to avoid a scenario where the Commission decides on the disclosure of information which is of no interest to the person making the request.
Costs
91 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those of Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, in accordance with the form of order sought by the applicant.
92 Since the Rules of Procedure only cover costs and not ‘other expenses incurred by the applicant in connection with the action’, those expenses, which moreover have not been defined or specified by the applicant, are not covered by the above order and the request that the Commission be ordered to pay those expenses must, accordingly, be refused.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Annuls the decision of the European Commission of 27 January 2010 refusing access to the requests for quotation relating to Lot 3A of tendering procedure DIGIT/PO/2005/113 – ESP-DESIS;
2. Annuls the Commission’s decision of 11 March 2010 refusing access to requests for quotation relating to all the other lots covered by that tendering procedure, all the lots covered by the tendering procedures DI/0005 ESP and ADMIN/DI/2/PO/2003/192 ESP-DIMA and by Framework Contract BUDG/0101;
3. Orders the Commission to bear its own costs and the costs incurred by Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE.
Azizi | Vadapalas | Frimodt Nielsen |
Delivered in open court in Luxembourg on 6 December 2012.
[Signatures]