Document 9
Ref. Ares(2020)3092549 - 15/06/2020
EUROPEAN COMMISSION
Brussels, 17.1.2019
C(2019) 340 final
OUT OF SCOPE
Austria
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2018/5957
Dear
,
I refer to your letter of 6 December 2018, registered on the same date, 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 1049/2001’).
1.
SCOPE OF YOUR REQUEST
By your initial application of 20 September 2018, you had requested, as the insolvency
administrator of
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, access to the table of contents in
merger cases M.8633 (Lufthansa/Certain Air Berlin assets) and M.8672 (EasyJet/Certain
Air Berlin assets).
In its initial reply dated 3 December 2018, the Directorate-General for Competition
refused access to the documents in question, based on the exceptions in Article 4(2), third
indent, of Regulation 1049/2001 (protection of the purpose of inspections, investigations
and audits) and Article 4(2), first indent, of the said Regulation (protection of commercial
interests).
1
Official Journal L 345 of 29.12.2001, page 94.
2
Official Journal L 145 of 31.5.2001, page 43.
3
.
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Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
In your confirmatory application, you request a review of this position. You put forward
a number of arguments to support your request. These have been taken into account in
our assessment, of which the results are described below.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
Having examined your confirmatory application, I have to inform you that the decision
of the Directorate-General for Competition to refuse access to the requested documents
has to be confirmed on the basis of Article 4(2), third indent, of Regulation 1049/2001
(protection of the purpose of inspections, investigations and audits), Article 4(2), first
indent, of the said Regulation (protection of commercial interests), and Article 4(3), first
subparagraph, of the above-mentioned Regulation (protection of the decision-making
process), for the reasons set out below.
2.1. Protection of the purpose of investigations and of commercial interests
Although in your confirmatory application, you do not contest the applicability of the
above-mentioned exceptions to the requested documents (your reasoning, instead is
focused on the issue of overriding public interest, which will be addressed in part 4 of
this decision), I would like to provide the additional information regarding the link
between disclosure of the said documents and impact on the interest protected by these
exceptions.
In accordance with the case-law of the Court of Justice, the European Commission,
‘when assessing a request for access to documents held by it, may take into account more
than one of the grounds for refusal provided for in Article 4 of Regulation No 1049/2001’
and two different exceptions can, as in the present case, be ‘closely connected’4.
Article 4(2), third indent of Regulation 1049/2001 provides that the ‘institutions shall
refuse access to a document where disclosure would undermine the protection of (…) the
purpose of inspections, investigations and audits’.
Article 4(2), first indent, of Regulation 1049/2001 provides that the
‘institutions shall
refuse access to a document where disclosure would undermine the protection of […]
commercial interests of a natural or legal person, including intellectual property’.
In its initial reply, the Directorate-General for Competition explained that the documents
falling under the scope of your request are part of a competition file regarding the
ongoing merger case investigations M.8633 (Lufthansa/Certain Air Berlin assets) and
M.8672 (EasyJet/Certain Air Berlin assets).
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Judgment
of
13
September
2013,
in
Case
T-380/08,
Netherlands
v
Commission,
(ECLI:EU:T:2013:480), paragraph 34.
2
These investigations cannot be considered as finalised, as the decisions adopted by the
European Commission are still subject to the ongoing court proceedings, which might
prompt the European Commission to reconsider its decision and reopen the case5.
Consequently, all documents in the file are covered by a general presumption of non-
accessibility based on the exceptions of the first and third indents of Article 4(2) of
Regulation 1049/2001. This means that the institution is not required to carry out a
specific and individual assessment of the content of each requested document.
In its judgment in
Commission v Technische Glaswerke Ilmenau6
, which concerned a
request for documents in two State aid cases, the Court of Justice upheld the European
Commission's refusal. It held that there exists, with regard to the exception related to the
protection of the purpose of investigations, a general presumption that disclosure of
documents in the file would undermine the purpose of State aid investigations. The Court
reasoned that such disclosure would call into question the State aid procedural system7.
The Court of Justice has upheld this reasoning in relation to documents in merger control
proceedings with regard to the exceptions related to the protection of the purpose of
investigations and commercial interests8. The disclosure of such documents would
undermine the system of procedural rules governing merger control proceedings, and in
particular the purpose of the privileged access rules9.
The Court of Justice indeed ruled in this regard that ‘generalised access, on the basis of
Regulation No 1049/2001, to the documents exchanged in […] a [merger control]
procedure between the [European] Commission and the notifying parties or third parties
would, as the [European] Commission has pointed out, jeopardise the balance which the
European Union legislature sought to ensure in the merger regulation between the
obligation on the undertakings concerned to send the [European] Commission possibly
sensitive commercial information to enable it to assess the compatibility of the proposed
transaction with the common market, on the one hand, and the guarantee of increased
protection, by virtue of the requirement of professional secrecy and business secrecy, for
the information so provided to the [European] Commission, on the other.
If persons other than those entitled to have access to the file by the rules on merger
control proceedings, or those who could be regarded as involved parties but have not
used their right of access to the information or have been refused access, were able to
obtain access to the documents relating to such a procedure on the basis of Regulation
5
Cases T-296/18,
Polskie Linie Lotnicze LOT v Commission, and T-240/18
Polskie Linie Lotnicze v
Commission.
6
Judgment of 29 June 2010, in Case C-139/07,
Commission v Technische Glaswerke Ilmenau.,
(ECLI:EU:C:2010:376).
7
See also judgment of 21 September 2010, in Case C-514/07 P,
Sweden and Others v API and
Commission, (ECLI:EU:C:2010:376), paragraphs 99 and 100.
8
Judgment of 28 June 2012, in Case C-477/10 P,
Commission v Agrofert Holding, (ECLI:EU:C:2012:394) paragraph 56 to 59 and 64, as well as judgment of 28 June 2012 in Case C-
404/10 P,
Commission v Odile Jacob, (ECLI:EU:C:2010:54), paragraphs 108-126.
9
Judgment in
Commission v Odile Jacob, cited above, (ECLI:EU:C:2010:54), paragraphs 118-123.
3
1049/2001, the system introduced by that legislation would be undermined.’10
This general presumption applies ‘irrespective of whether the request for access concerns
a control procedure which is already closed or a pending procedure. The publication of
sensitive information concerning the economic activities of the undertakings involved is
likely to harm their commercial interests, regardless of whether a control procedure is
pending. Furthermore, the prospect of such publication after a control procedure is closed
runs the risk of adversely affecting the willingness of undertakings to cooperate when
such a procedure is pending.’11 This general presumption can apply up to 30 years and
possibly beyond12.
As already explained, the tables of contents to which you requested access, form part of
the files relating to the investigations in cases M.8633 and M.8672 and therefore are
covered by the general presumption of non-disclosure mentioned above. Additionally, as
confirmed by the General Court, public disclosure of information included in such
documents is liable, in the same way as the disclosure of other documents in the file of a
merger case, to undermine the interests protected by the exceptions provided for in the
first and third indents of Article 4 (2) of Regulation 1049/200113.
Having regard to the above, I consider that the use of the exceptions under Article 4(2),
third indent, of Regulation 1049/2001 (protection of the purpose of investigations), and
Article 4(2), first indent, of the said Regulation (protection of commercial interests) is
justified, and that access to the documents in question must be refused on that basis.
2.2. Protection of the ongoing decision-making process
Article 4(3), first subparagraph, of Regulation 1049/2001 provides that ‘access to a
document, drawn up by an institution for internal use or received by an institution, which
relates to a matter where the decision has not been taken by the institution, shall be
refused if disclosure of the document would seriously undermine the institution's
decision-making process, unless there is an overriding public interest in disclosure’.
As explained under point 2.1, as long as the decision adopted by the European
Commission are subject to the ongoing court proceedings, which might prompt the
European Commission to reconsider its decision and reopen the case, the institution's
decision-making process is still ongoing.
Indeed, disclosure of the requested documents would undermine the purpose of the
investigation and seriously undermine the ongoing decision-making process with regard
to the future procedural steps which the European Commission might have to take in case
the above-mentioned decision is reopened. The European Commission’s services must
indeed be able to explore all possible options free from external pressure.
10
Idem, paragraphs 121 and 122.
11
Idem, paragraph 124.
12
Judgment in
Commission v Agrofert Holding, cited above, (ECLI:EU:C:2012:394), paragraph 67.
13
Judgment of 5 February 2018 in Case T-611/15,
Edeka-Handelsgesellschaft Hessenring GmbH v.
Commission, (ECLI:EU:T:2016:643), paragraph 75-77.
4
In this context, I would like to again refer to the case law of the General Court, according
to which the table of contents of a competition file can be considered a document
‘established for the institution’s internal use’ in the meaning of Article 4(3) of Regulation
1049/200114.
I conclude, therefore, that access to the documents which form part of the cases must also
be denied on the basis of the exception laid down in Articles 4(3), first subparagraph, of
Regulation 1049/2001.
3.
NO PARTIAL ACCESS
I have also examined the possibility of granting partial access to the documents
concerned, in accordance with Article 4(6) of Regulation 1049/2001. However, it follows
from the assessment made above that the documents which fall within the scope of your
request are manifestly and entirely covered by the exceptions laid down in Article 4(2),
first and third indents, of Regulation 1049/2001 and Article 4(3), first subparagraph, of
the said Regulation.
It must also be underlined that the Court of Justice confirmed that where the documents
requested are covered by a general presumption of non-disclosure, such documents do
not fall within an obligation of disclosure, in full, or in part15.
4.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) and Article 4(3) 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.
In your confirmatory application, you argue that such interest exists in the case at hand.
You underline that ‘[you are] currently reviewing certain potential claims from the debtor
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against third parties and in particular [you are] trying to find out
when exactly the inability to pay debts and the over-indebtedness occurred […]’.
I note that in your initial application of 20 September 2018, you point at alleged
difficulties relating to the examination of the claims, linked to the problem in accessing
informatics systems of
, which ‘was managed through the servers
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of
’.
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In this context, you underline that ‘[i]f the [European] Commission […] denies access to
the file in the present case it would prevent [you] as the insolvency administrator […] to
ensure that the purpose of Austrian insolvency law is adequately protected’.
14
Judgment of 5 February 2018 in Case T-611/15,
Edeka-Handelsgesellschaft Hessenring GmbH v.
Commission, (ECLI:EU:T:2016:643), paragraph 116.
15
Judgment of 25 March 2015 in Case T-456/13,
Sea Handling v Commission, (ECLI:EU:T:2015:185),
paragraph 93.
5
Consequently, the public interest that, in your view, warrants disclosure of the requested
documents, is linked to your role of the insolvency administrator and the obligations
linked thereto. You underline that according to the Austrian law, ‘an insolvency
administrator is appointed to protect both private and public interests’. Therefore,
ensuring a fair and equitable process of the insolvency proceedings constitutes, in your
view, such an overriding public interest.
At the same time, however, you point out that ‘[you] have to assert claims of the
insolvency estate in the interests of creditors […]’.
Therefore, while it cannot be disputed that fairness of the insolvency process must be
ensured, the administrator’s primary role is to represent private interests of the debtors.
In this respect, please note that any possible private interest cannot be taken into account
for the purpose of assessing the possible existence of an overriding public interest16.
Therefore, the above-mentioned use of the document cannot constitute an overriding
public interest in the sense of Regulation 1049/200117.
Please note that the purpose of Regulation 1049/2001 is to define the rules regarding
public
access to European Parliament, Council and European Commission documents.
All requests for access to documents must be treated in the same way and no specific
interest or background of an applicant can be taken into account.
The General Court confirmed this view in its
Franchet and
Byk judgments in which it
stated that ‘[i]t follows that the applicants’ application must be examined in the same
way as an application from any other person’18. The particular interest which you may
have in obtaining access to the requested documents is therefore not relevant when
applying Regulation 1049/2001, and cannot be confused with a public interest.
Furthermore, in the recent judgment in Case T-634/17, the Court acknowledged that the
sum of a great number of private interests does not transform it into a public interest19.
The fact that the documents requested relate to an administrative procedure rather than a
legislative act, for which the Court of Justice has acknowledged the existence of wider
openness, further supports this conclusion.
Consequently, I consider that in this case there is no overriding public interest that would
outweigh the public interest in safeguarding the protection of the purpose of
investigations, commercial interests and the ongoing decision-making process protected
by the first and third indents of Article 4(2) of Regulation 1049/2001, as well as by
Article 4(3), first subparagraph, of the said Regulation.
16
Judgment of 20 March 2014, in Case T-181/10,
Reagens v Commission, (ECLI:EU:T:2014:139),
paragraph 144.
17
Judgment of 25 September 2014 in Case T-669/11,
Spirlea v Commission, (ECLI:EU:T:2014:814),
paragraph 99.
18
Judgment of 6 July 2006 in Joined Cases T-391/03 and T-70/04,
Yves Franchet and Daniel Byk v
Commisison, (ECLI:EU:T:2006:190), paragraph 82.
19
Judgment of 9 October 2018, in Case T-634/17,
Anikó Pint v Commission, (ECLI:EU:T:2018:662),
paragraph 59.
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5.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the 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
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