EUROPEAN COMMISSION
Brussels, 4.6.2019
C(2019) 4280 final
SW22JS London
United Kingdom
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2019/1252
Dear
,
I refer to your letter of 27 March 2019, registered on the same day, in which you submit a
confirmatory application in accordance with Article 7(2) of Regulation (EC) No
1049/2001 regarding public access to European Parliament, Council and Commission
documents2 (hereafter ‘Regulation (EC) No 1049/2001’).
1.
SCOPE OF YOUR REQUEST
In your initial application of 5 March 2019, addressed to the Directorate-General for
Justice and Consumers, you requested access to the English version of the Letter of
Formal Notice sent by the European Commission to the Czech Republic in infringement
Case no. 2014/2174 (hereafter: ‘requested document’).
The Letter of Formal Notice in the Czech language was sent by European Commission to
the Czech Republic on 26 September 2014 under reference SG-Greffe(2014) D/13925.
In its initial reply of 27 March 2019, Directorate-General for Justice and Consumers
refused access to the requested document based on the exception of the third indent of
Article 4(2) (protection of the purpose of inspections, investigations and audits) of
Regulation (EC) No 1049/2001.
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
In your confirmatory application, you request a review of this position. You support your
request with detailed arguments, which I will address in the corresponding sections
below.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation (EC) No 1049/2001, the Secretariat-General conducts a fresh review of the
reply given by the Directorate-General concerned at the initial stage.
As regards the requested document, I regret to inform you that I have to confirm the
initial decision of Directorate-General for Justice and Consumers to refuse access, based
on the exception of the third indent of Article 4(2) (protection of the purpose of
inspections, investigations and audits) of Regulation (EC) No 1049/2001, for the reasons
set out below.
As a preliminary note, I have to point out that the infringement no. 2014/2174 is an on-
going procedure of which the requested document forms part. The European Commission
considers infringement procedures as a form of investigation.
The third indent of Article 4(2) of Regulation (EC) No 1049/2001 provides that ‘[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of the purpose of inspections, investigations and audits’.
It is settled case-law of the Court of Justice that, ‘[…] the Member States are entitled to
expect the European Commission to guarantee confidentiality during investigations
which might lead to an infringement procedure. This requirement of confidentiality
remains even after the matter has been brought before the Court of Justice, on the ground
that it cannot be ruled out that the discussions between the Commission and the Member
State in question regarding the latter's voluntary compliance with the Treaty requirements
may continue during the court proceedings and up to the delivery of the judgment of the
Court of Justice. The preservation of that objective, namely an amicable resolution of the
dispute between the Commission and the Member State concerned before the Court of
Justice has delivered judgment, justifies refusal of access […] on the ground of
protection of the public interest relating to inspections, investigations and court
proceedings […].’3
Public access to documents forming part of on-going investigations can be refused under
the third indent of Article 4(2) of Regulation (EC) No 1049/2001 based on a general
presumption. The Court of Justice ruled that, ‘documents relating to an infringement
procedure during the pre-litigation stage may be covered by the general presumption of
confidentiality [because] “it can be presumed that the disclosure of the documents
concerning an infringement procedure during its pre-litigation stage risks altering the
nature of that procedure and changing the way it proceeds and, accordingly, that
3
Judgment of the Court of First Instance of 11 December 2001,
Petrie and Others v Commission, T-
191/99, EU:T:2001:284, paragraph 68.
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disclosure would in principle undermine the protection of the purpose of investigations,
within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001”.’4
The Court of Justice specified that this general presumption covered all documents
relating to the infringement procedure under Article 258 Treaty on the Functioning of the
European Union: ‘[c]onsequently, […] all the documents, irrespective of whether they
had been drawn up during the informal stage of that procedure, that is to say before the
Commission sent the letter of formal notice to the Member State concerned, or during the
formal stage thereof, that is to say after that letter was sent, were regarded as being
covered by that presumption’.5
The mere fact that a document in Czech exists on the internet does not imply that the
presumption of confidentiality has ceased to apply to the ongoing dialogue between the
European Commission and the Czech authorities, for which a climate of trust remains
essential.
I note that, as the Letter of Formal Notice originates from the European Commission, any
attempt on behalf of the Czech authorities to disclose this document should have
normally been preceded by a consultation request under Article 5 of Regulation (EC) No
1049/2001. However, the European Commission did not receive any such consultation
request.
Furthermore, according to the General Court, even the fact that national authorities
disclosed a document belonging to an infringement file under their national law is not
decisive to assess if the presumption of non-disclosure applies under Regulation (EC)
1049/2001 since that Regulation does not have the effect to amend national legislations
on access to documents.6
Therefore, the disclosure of the requested document at this stage of the procedure would
essentially deprive the Czech authorities from their lawful expectation of sincere
cooperation on the part of the European Commission during the infringement procedure.
Refusal of access to the requested document is therefore justified under the third indent
of Article 4(2) Regulation (EC) No 1049/2001.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) of Regulation (EC) No 1049/2001 must be
waived if there is an overriding public interest in disclosure. Such an interest must,
firstly, be public and, secondly, outweigh the harm caused by disclosure.
4
Judgment of the Court of Justice of 14 November 2013,
LPN and Finland v Commission, C-514/11 P
and C-605/11 P, EU:C:2013:738, paragraph 40.
5
Ibid, paragraph 41.
6 Judgment of the General Court of 5 December 2018,
Sumner v European Commission, Case T-152/17,
EU:T:2018:875, paragraph 40.
3
In your confirmatory application, you argue that the Czech version of the requested
document is already available online and that ‘[d]isclosing the English version would in
this situation then only equalise access to the said letter and allow English speakers to
access it as well.’
Such a statement setting out purely general considerations is not sufficient for the
purpose of establishing that an overriding public interest prevails over the reasons
justifying the refusal to disclose the documents in question.7
Nor have I been able, based on the elements at my disposal, to establish the existence of
any overriding public interest in disclosing the Letter of Formal Notice in its English
version. Such a disclosure would be to the detriment of the principle of legal certainty.
Indeed, the Letter of Formal Notice was sent by European Commission to the Czech
Republic in the Czech language. According to Article 3 of Regulation No 1 determining
the languages to be used by the European Economic Community, as amended,8
‘[d]ocuments which an institution of the [European Union] sends to a Member State […]
shall be drafted in the language of such State.’ Thus, the European Commission shall
always use the official language of the addressed Member State when sending documents
relating to infringement procedures.
Therefore, I consider that the public interest is better served in this case by ensuring the
conclusion, in all serenity, of the infringement investigation, without jeopardising the
dialogue between the European Commission and the Member State for which, as pointed
out above, a climate of trust is essential.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting (further) partial access to the document requested.
However, as stated by the Court of Justice, where the document requested is covered by a
general presumption of non-disclosure, such document does not fall within an obligation
of disclosure, in full, or in part.9
Consequently, I have come to the conclusion that the document requested is covered in
its entirety by the invoked exceptions to the right of public access.
7 Judgments of the Court of Justice of 14 November 2013,
LPN and Finland v Commission, C-514/11 P
and C-605/11 P, EU:C:2013:738, paragraph 93).
8 Official Journal P 017 of 6.10.1958, p. 385.
9 Judgment of the Court of Justice of 28 June 2012,
European Commission v Éditions Odile Jacob,
C-404/10 P, EU:C:2012:393, paragraph 133.
4
5.
MEANS OF REDRESS
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and
228 of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Martin SELMAYR
Secretary-General
5