Case T‑569/19
AlzChem Group AG
v
European Commission
Judgment of the General Court (Fifth Chamber), 29 September 2021
(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to a procedure for the recovery of State aid following a decision declaring the aid incompatible with the internal market and ordering its recovery – Refusal to grant access – Exception relating to the protection of the purpose of inspections, investigations and audits – Overriding public interest – Principle of non-discrimination – Obligation to state reasons)
1. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Time limit prescribed for a response to a confirmatory application for access – Extension allowed only once – No decision at the end of the extended time limit – Implied refusal decision open to challenge
(European Parliament and Council Regulation No 1049/2001, Art. 8)
(see paragraph 26)
2. Action for annulment – Natural or legal persons – Interest in bringing proceedings – Action brought against an implied decision on the part of the Commission refusing access to documents – Decision withdrawn as a result of the Commission subsequently adopting an express decision – Applicant having brought an action against the latter decision – No longer any interest in bringing proceedings
(Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001, Arts 7 and 8)
(see paragraphs 27, 28)
3. Actions for annulment – Time limits – Point from which time starts to run – Action brought against an express decision refusing a request for access to documents
(Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 8(1) to (3))
(see paragraph 30)
4. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Strict interpretation and application – Obligation on the institution to examine the documents specifically and individually – Scope – Exclusion of the obligation – Possibility to base reasoning on general presumptions applying to certain categories of documents – Limits
(European Parliament and Council Regulation No 1049/2001, Arts 1 and 4(2))
(see paragraphs 36, 38-42, 65, 79)
5. 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 – Definition – Obligation on the institution or body to balance the interests at stake
(European Parliament and Council Regulation No 1049/2001, recital 2 and Art. 4(2))
(see paragraphs 43, 123-125)
6. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the purpose of inspections, investigations and audits – Scope – Application to administrative files relating to procedures for reviewing State aid – Application to documents relating to the procedure for reviewing the implementation of a Commission decision ordering the recovery of State aid
(European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent)
(see paragraphs 56-58, 60-64, 69-78, 84-91, 96)
Résumé
The applicant, AlzChem Group AG, is a German company which operates in the chemical industry. It intervened as an interested party in the procedure that led to Decision 2015/1826, (1) by which the European Commission found, inter alia, that Novácke chemické závody, a.s., a Slovak chemical company, had received State aid from the Slovak Republic that was unlawful and incompatible with the internal market, and ordered the recovery of that aid.
In April 2019, the applicant submitted to the Commission a request for access to documents under Regulation No 1049/2001. (2) That request concerned the relevant documents held by the Commission containing information on the state of progress of the recovery procedure and the amount of State aid recovered by the Slovak Republic following Decision 2015/1826 (‘the requested documents’). After the rejection of its request, the applicant submitted a confirmatory application to the Commission.
By decision of 22 July 2019, (3) the Commission refused to grant the applicant access to the requested documents, taking the view that they came under, first, the exception relating to the protection of investigations (4) and, secondly, the exception relating to the protection of commercial interests. (5) The applicant subsequently brought an action for annulment of that decision.
The General Court dismisses the applicant’s action and, in its judgment, provides a useful addition to case-law as regards the exception relating to the protection of the purpose of investigations. It also recognises a general presumption of confidentiality applicable to documents relating to the procedure for reviewing the implementation of a decision ordering the recovery of State aid.
Findings of the Court
By way of preliminary observations, the Court provides a summary of the identification of actionable measures and the applicable time limit for bringing an action following a request for access to documents under Regulation No 1049/2001.
Thus, in the first place, under Article 8 of Regulation No 1049/2001, the Commission can extend the initial time limit (6) for responding to a request for access only once and, on the expiry of the extended period, an implied decision to refuse access is deemed to have been adopted. In that regard, the Court states that the initial time limit is mandatory and cannot be extended other than in the circumstances provided for in Article 8(2) of Regulation No 1049/2001. Such an implied decision refusing access may be the subject of an action for annulment, (7) as is the case for the express refusal decision, which is the definitive response to the confirmatory application for access to the documents in question. The Court also states that if the implied decision has been the subject of an action for annulment, the applicant loses its interest in continuing proceedings by reason of the adoption of the express decision, and there is no longer any need to give a ruling on that action. If the express decision was adopted before the action was brought against the implied decision, any action subsequently brought against the implied decision would then be inadmissible.
In the second place, the Court states that the time limit for bringing an action for annulment of the express decision must be calculated in accordance with the provisions of Article 263 TFEU and cannot be counted from the date of the implied refusal decision.
As regards the substance, the Court examines, first of all, whether there is a general presumption of confidentiality applicable to documents relating to the procedure for reviewing the implementation of a decision ordering the recovery of State aid. In that regard, the Court states that, according to the case-law, (8) the general presumption of confidentiality which concerns documents in the administrative file relating to a procedure for reviewing State aid expressly covers documents which are part of the investigation carried out by the Commission in order to find in a decision that, inter alia, there is State aid and order that it be recovered. However, the EU Courts have not yet had to rule on a refusal to grant access to documents relating to the stage of implementation of such a Commission decision by the Member State concerned. Therefore, although it is true that the recognition of the general presumption of confidentiality in the case-law concerns the administrative file in the context of a review procedure, (9) that general presumption is certain only as concerns documents forming part of the administrative procedure leading to the adoption of a decision by the Commission in which the latter finds that, inter alia, there is State aid and orders its recovery.
Furthermore, as regards the documents relating to the implementation phase of a decision in which the Commission orders the recovery of State aid, they may indeed be formally part of the same file containing the documents relating to the investigation conducted by the Commission which led it to adopt that decision. All the documents relate to the same national measure or measures. However, the exceptions relating to the protection of the purpose of inspections, investigations and audits must be interpreted and applied strictly in so far as they derogate from the principle of the widest possible public access to documents held by the EU institutions. Therefore, it cannot be held that the general presumption of confidentiality in relation to the review of State aid, as recognised by the case-law, necessarily covers the documents relating to the stage of implementation of the Commission’s decision on the basis that they are supposedly part of the same administrative file.
The Court therefore examines whether the latter documents may also be covered by a general presumption of confidentiality, whether it be that relating to the review of State aid or another general presumption of confidentiality. In that regard, the Court states that the EU Courts have identified a number of criteria for recognising a general presumption of confidentiality, which relate to the documents concerned, on the one hand, and the undermining of the interest protected by the exception in question, on the other.
As regards the documents concerned, the Court points out that, in order for a general presumption of confidentiality to be validly relied upon against a person requesting access to documents on the basis of Regulation No 1049/2001, it is necessary that the documents in question belong to the same category of documents or be documents of the same nature.
In that regard, the General Court notes that the Court of Justice has indeed held that all the documents in the administrative file relating to a procedure for reviewing State aid formed a single category. Nevertheless, the EU Courts have not ruled on whether the documents which led to the adoption of the decision by which the Commission found that there was State aid and that it should be recovered, and the documents relating to the procedure for reviewing the implementation of that decision belong to the same category of documents. Even though they may belong to the same Commission file, the fact remains that, strictly speaking, they come under two different categories of documents. On the other hand, the documents relating to the procedure for reviewing the implementation of a Commission decision ordering the recovery of State aid form a single category, in that they are clearly defined by the fact that they all belong to the file relating to an administrative procedure, subsequent to the procedure which led to the adoption of that decision.
As regards the undermining of the interest protected by the relevant exception, namely the protection of the purpose of investigations, the Court finds, first, that the procedure for reviewing the implementation of the decision requiring the recovery of State aid does correspond to ‘investigations’ carried out by the Commission. (10) Such an activity constitutes a structured and formalised Commission procedure that has the purpose of collecting and analysing information in order for that institution to take a position in the context of its functions provided for by the EU and FEU Treaties. That procedure does not necessarily have to have the purpose of detecting or pursuing an offence or irregularity. The concept of ‘investigation’ could also cover a Commission activity intended to establish facts in order to assess a given situation.
According to the Court, in view of the particular position of the Member State concerned in the procedure for reviewing the implementation of a decision ordering the recovery of State aid, in principle, disclosure of documents relating to that procedure would undermine the dialogue and, therefore, the cooperation between the Commission and that Member State. Consequently, the Court rules that the Commission did not err in law in finding that the documents relating to the procedure for reviewing the implementation of a decision ordering the recovery of State aid were covered by a general presumption of confidentiality under the exception relating to the protection of the purpose of investigations, as provided for in Regulation No 1049/2001.