Document 11
Ref. Ares(2020)3092549 - 15/06/2020
EUROPEAN COMMISSION
Brussels, 18.1.2019
C(2019) 592 final
OUT OF SCOPE
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation No 1049/2001 - GESTDEM 2018/5390
Dear Mr
,
I refer to your letter of 7 December 2018, 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 No 1049/2001').
1.
SCOPE OF YOUR REQUEST
In your initial application, you requested access to all documents relating to two
infringement files:
infringement file number 2015/2200 regarding the compatibility of Spanish
procedural law with Directive 93/13/EEC on unfair contract terms, and a possible
breach of Article 47 of the EU Charter of Fundamental Rights;
infringement file number 2017/4004 regarding the compatibility of Spanish rules
on State liability for a breach of EU law due to the Spanish legislature with the
principles of equivalence and effectiveness.
This confirmatory decision refers to the latter part of your request, which was attributed
to the Legal Service of the European Commission at initial level.
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 its initial reply of 21 November 2018, the Legal Service refused access to the
documents in question, based on the exception of Article 4(2), third indent of Regulation
No 1049/2001 (protection of the purpose of inspections, investigations and audits).
In your confirmatory application, you request a review of the initial reply. In particular,
you request access to the infringement file in question and to all the documents which
gave rise to the infringement proceedings and the documents generated therein (‘[..] y me
conceda acceso al expediente de infracción 2017/4004, mediante la facilitación de copia
del mismo, así como de las actuaciones y documentos que hayan originado dicho
expediente y de los documentos que traigan cause del mismo’). You put forward detailed
arguments, which I will address below.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation No 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
Following this review, I regret to inform you that I have to confirm the initial decision of
the Legal Service of the European Commission and refuse access to the documents
forming part of the infringement proceedings in case 2017/4004 based on the exception
defined in Article 4(2), third indent (protection of purpose of investigations), for the
reasons set out below.
The documents to which you request access form part of the procedure laid down in
Article 258 of the Treaty on the Functioning of the European Union, which consists of
two consecutive stages, the administrative pre-litigation stage and the judicial stage
before the Court of Justice. The purpose of the pre-litigation procedure is to allow the
Member State to put an end to any alleged infringement, to enable it to exercise its rights
of defence and to define the subject-matter of the dispute with a view to bringing an
action before the Court.3
Article 4(2), third indent of Regulation 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.’
Contrary to what you argue in your confirmatory application, even if Regulation No
1049/2001 does not expressly foresee an exception to the right of access to documents
during ongoing infringement proceedings, in several judgements the Court of Justice
interpreted Article 4(2) third indent with regard to infringement proceedings.
3 Judgment of 10 December 2002,
Commission v Ireland, C-362/01, EU:C:2002:739, paragraphs 15 and
16.
2
Furthermore, the Court has interpreted Article 4(2), third indent of Regulation No
1049/2001
inter alia in its
LPN judgment, in which it underlined that in ongoing
infringement cases, the institution may base itself on a general presumption of non-
disclosure applied to the documents concerned in their entirety.4 This confirmed the
Court's earlier
Petrie judgment, in which it ruled that ‘[…] the Member States are
entitled to expect the 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’.5
Also, in the
ClientEarth case, the General Court stated that ‘the
exception relating to the protection of the purpose of investigations does not apply solely
to documents relating to infringement proceedings which have been commenced but also
to documents concerning investigations the outcome of which might be such
proceedings’.6
Consequently, all documents in the infringement file are covered by a general
presumption of non-accessibility based on the exception of Article 4(2), third indent of
Regulation No 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 your specific case, the requested documents relate to infringement procedure
2015/4004, which has neither reached the stage of a ruling of the Court of Justice nor
been closed by the European Commission, and is, therefore, still ongoing. In these
proceedings, the European Commission has sent a letter of formal notice and a reasoned
opinion to the Spanish authorities.
Public disclosure of the requested documents would negatively influence the dialogue
between the Commission and the Kingdom of Spain, for which a climate of trust is
essential. This climate of mutual trust between the Commission and the Member States
concerned must be ensured throughout the different stages of the procedure until the
investigation is definitively closed. Disclosure of the requested documents at this stage
would be incompatible with that aim.
Contrary to what you allege, the use of the exception in this case reflects a strict
interpretation of the exceptions of Regulation No 1049/2001. Furthermore, contrary to
what you argue in your confirmatory application, the reasoning of the European
Commission
4 Judgment of 14 November 2013,
LPN and Finland v Commission, Cases C-514/11 P and C-605/11 P,
EU:C:2013:738, paragraphs 55, 65-68.
5 Judgment of 11 December 2001,
Petrie and Others v Commission, T-191/99, EU:T:2001:284,
paragraph 68.
6
Judgment of 13 September 2013,
ClientEarth v European Commission, T-111/11, EU:T:2013:482,
paragraph 80.
3
does not violate Article 15, paragraphs 1 and 3 of the Treaty on the Functioning of the
European Union referring to the general principle of transparency and openness which
guides the work of the institutions. Article 15 paragraph 3 does not grant the right to an
unlimited access to documents. Indeed, the Union legislator is empowered to lay down
the principles and limits governing access to documents, notably through Regulation No
1049/2001.
You also argue that the considerations put forward by the European Commission infringe
the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental
Rights, rendering applicants defenceless as the latter are not allowed to bring forward
contradictory arguments.
I note however that, in your confirmatory application, you do not bring forward any
elements explaining how the European Commission is denying you access to an effective
remedy. Please note in this respect that the means of review and redress available to
applicants are, by way of standard practice, mentioned at the end of every initial and
confirmatory decision, as was the case in the initial reply to your application, and is the
case in this confirmatory decision.
Furthermore, it is also the European Commission's general practice to address, in each
confirmatory decision, the various issues raised by an applicant in his/her confirmatory
application.
Having regard to the above, I consider that the use of the exception under Article 4(2),
third indent of Regulation No 1049/2001 on the grounds of protecting the purpose of
inspections, investigations and audits is justified, and that access to the documents in
question must be refused on that basis.
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 No 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 exception laid down in Article
4(2), third indent of Regulation No 1049/2001.
It must also be underlined that the Court of Justice has confirmed that a presumption of
non-disclosure excludes the possibility to grant partial access to the file.7
Consequently, partial access is not possible considering that the documents requested are
covered in their entirety by the invoked exception to the right of public access.
7
Judgment of 25 March 2015,
Sea Handling v Commission, T-456/13, EU:T:2015:185, paragraph 93.
4
4.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) of Regulation No 1049/2001 must be waived if
there is an overriding public interest in disclosure. Such an interest, firstly, has to be
public and, secondly, has to outweigh the damage caused by the release, i.e. it must in
this case outweigh the interests protected by virtue of the third indent of Article 4(2) of
Regulation No 1049/2001.
In your confirmatory application you invoke an alleged public interest linked to the
importance of citizens’ involvement in situations that are contrary to European Union
law. Furthermore, you argue that as a practising lawyer in the area of consumers rights
law, and as an applicant who lodged a complaint regarding certain aspects covered by
infringement procedure 2017/4004, you would be in a position to bring new elements to
the European Commission in relation to an alleged violation of European consumer law
by Spain, which is relevant for the claim of State liability for breach of EU law. In the
case in hand it is European consumer law.
The role of citizens is certainly very important in detecting infringements of European
Union law, as is reflected in the corresponding procedures established by the European
Commission which enable citizens to draw the former’s attention to possible
infringements. However, the involvement of citizens and their role in detecting
infringements does not require access of complainants to documents exchanged in
ongoing infringement cases.
Furthermore, in the
Association Justice & Environment judgment, the Court held that
‘general considerations relating to the principle of transparency and the right of the
public to be informed of the work of the institutions cannot justify the disclosure of
documents relating to the pre-litigation stage of infringement procedures, as the
Commission […] ensures that the public is informed about the progress of specific
infringement cases through the regular publication of press releases’.8
Therefore, I note that the considerations in your confirmatory application are of a general
nature and cannot provide an appropriate basis for establishing that any possible
overriding interest would prevail over the reasons justifying the refusal to disclose the
documents in question.9 Indeed, I consider that the interests on which you rely do not
demonstrate a pressing need for the disclosure of the documents requested or that they
prevail over the reasons justifying the refusal to disclose the documents in question. Such
general considerations are therefore not capable of demonstrating that the principles of
8
Judgment of the General Court of 23 January 2017,
Association Justice & Environment v European
Commission, T-727/15, EU:T:2017:18, paragraph 60.
9 Judgment in
LPN and Finland v Commission, cited above, EU:C:2013:738, paragraph 93.
5
transparency and democracy raised in this case are of a particularly pressing nature that
would prevail over the reasons justifying the refusal to disclose the requested documents.
Furthermore, in order to address your second concern, I note that recently the General
Court confirmed again that the right of access to documents does not depend on the
nature of the particular interest which the applicant for access may or may not have in
obtaining the information requested.10
Consequently, I consider that in this case there is no overriding public interest in
disclosure that would outweigh the public interest in safeguarding the protection of the
purpose of investigations protected by Article 4(2), third indent of Regulation No
1049/2001. In addition, I consider that in this specific case, the public interest is better
served by protecting the atmosphere of mutual trust between the Commission and the
Member States involved in the infringement proceedings.
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 European Commission
Martin SELMAYR
Secretary-General
10 Judgment of the General Court 27 November 2018,
VG v Commission, joined cases T-314/16 and T-
435/16, EU:T:2018:841, paragraph 55
.
6