DOC 8
Ref. Ares(2020)4117196 - 05/08/2020
EUROPEAN COMMISSION
Brussels, 15.2.2019
C(2019) 1461 final
Sferia S.A.
Warszawa
Polska
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 2018/5757
Dear
I refer to your letter of 24 December 2018, registered on 27 December 2018, 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
On 22 October 2018 you submitted to the Ministry of Digital Affairs of the Republic of
Poland a request access to:
‘1) a list of ongoing proceedings of the European Commission concerning Sferia, and in
particular the allocation of frequencies from the 800 MHz band, including the reference
number, subject and stage of the proceedings as well as the schedule of next steps
stemming from agreements or legal provisions, and proceedings which have been
concluded and their outcome [and]
2) documents held by the body concerning the proceeding(s) indicated referred to in
point 1, in particular all types of correspondence of the European Commission and the
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
Polish authorities, including the Minister for Digital Affairs, especially any kind of
complaints, summons, decisions, positions, assessments etc.’
{original quote:
‘1) […] informacji zawierającej wykaz prowadzonych przez Komisje Europejską
postpowań dotyczących Sferii, a w szczególności „rozdysponowania częstotliwości z
zakresu 800 MHz", z podaniem sygnatury, przedmiotu oraz etapu postępowania, jak
również dalszego harmonogramu postępowania wynikającego z ustaleń lub przepisów
prawa, w tym także postpowań, które zostały zakończone oraz ich rezultatu [oraz]
2) […] dokumentów postępowania (lub postpowań) wskazanych w punkcie 1, w
szczególności wszelkiego rodzaju pism Komisji Europejskiej oraz organów administracji
polskiej, w tym Ministra Cyfryzacji, w szczególności wszelkiego rodzaju skarg, wezwań,
decyzji, stanowisk, ocen itp.’}.
As your initial application concerned the documents originating from the European
Commission, the Ministry of Digital Affairs of the Republic of Poland on 31 October
2018 referred the case, based on the provisions of Article 5, second subparagraph, of
Regulation (EC) No 1049/2001, to the European Commission for handling and reply.
Following the initial assessment, it has been established that the subject matter of your
initial application falls in the remit of two Directorates-General of the European
Commission. Consequently, it has been attributed to the Directorate-General for
Competition (Gestdem 2018/5756) and the Directorate-General for Communications
Networks, Content and Technology (Gestdem 2018/5757).
Through its initial reply dated 3 December 2018, the Directorate-General for
Communications Networks, Content and Technology informed you that, as far as he first
point of your initial application is concerned, it does not hold any documents containing
‘a list of ongoing proceedings of the European Commission concerning Sferia […]’
{original quote: ‘informacji zawierającej wykaz prowadzonych przez Komisje
Europejską postpowań dotyczących Sferii […]’}.
With regard to the second point of your initial application, the Directorate-General for
Communications Networks, Content and Technology refused access to the documents
concerned, based on the exceptions protecting the purpose of inspections, investigations
and audits and the decision-making process, provided for, respectively, in Article 4(2),
third indent, of Regulation (EC) No 1049/2001 and in Article 4(3) of the said
Regulation3.
Through your confirmatory application, you request a review of the position of the
Directorate-General for Communications Networks, Content and Technology.
3 With regard to the documents held by the Directorate-General for Competition, the later provided its
initial reply to the application Gestdem 2018/5756 on 26 November 2018.
2
Please note that under Article 5 of Regulation (EC) n° 1049/2001, an application for
access to documents submitted to the authorities of a Member State may be referred to
the European Commission only to the extent that the documents originating from the
latter are concerned4. Consequently, this decision only relates to the public access to the
documents falling under the scope of your initial application and originating from the
European Commission.
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.
Having examined your confirmatory application, I have to inform you that the decision
of the Directorate-General for Communications Networks, Content and Technology to
refuse access to the documents referred to in the first point of your initial application has
to be confirmed on the basis of Article 4(2), third indent of Regulation (EC) No
1049/2001 (protection of the purpose of inspections, investigations and audits), for the
reasons set out below.
With regard to the document referred to in the first point of your initial application, as
explained by the Directorate-General for Competition in its initial reply, no such ‘list of
ongoing proceedings concerning Sferia’ {original quote: ‘wykaz prowadzonych przez
Komisje Europejską postpowań dotyczących Sferii’}, containing all information listed in
your request (‘the reference number, subject and stage of the proceedings as well as the
schedule of next steps […]’ {original quote: ‘sygnatura, przedmiot oraz etap
postępowania, jak również dalszy harmonogram postępowania […]’}, is held by the
European Commission.
2.1. Protection of the purpose of investigations
Article 4(2), third indent of Regulation (EC) No 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’.
Although in your confirmatory application you do not contest the position of the
Directorate-General for Communications Networks, Content and Technology as regards
the applicability of the above-mentioned exception to the documents concerned, I would
like to provide additional explanations on how their public disclosure would undermine
the interests protected by this exception.
As a preliminary comment, it needs to be underlined that documents that are disclosed
under Regulation (EC) No 1049/2001 become, legally speaking, public documents.
4 Judgement of the General Court of 28 April 2017,
Gameart v Commission, T-264/15, EU:T:2017:290,
paragraph 36.
3
Indeed, a document released following an application for access to documents would
have to be provided to any other applicant that would ask for it.
The documents to which you request access form part of the file concerning 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.5 The procedure in question bears the
reference number 2016/2122 and is still ongoing.
The Court has interpreted Article 4(2), third indent, of Regulation (EC) No 1049/2001
among others in its
Liga para a Protecção da Natureza judgment, in which it underlined
that in ongoing infringement cases, the institution may base itself on a general
presumption of non-disclosure6. This confirmed the Court’s earlier
Petrie judgment, in
which it ruled 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 European 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.’7
Consequently, all documents in the file are covered by a general presumption of non-
accessibility based on the exception of Article 4(2), third indent, of Regulation (EC) No
1049/2001, as they relate to an infringement procedure that, as mentioned above, is still
ongoing.
Against this background, public disclosure of the requested documents would not only
negatively influence the dialogue between the European Commission and the Member
State, for which a climate of trust is essential, but would also alter the strictly bilateral
nature of the infringement procedure as provided for in Article 258 of the Treaty on the
Functioning of the European Union.
Such disclosure would consequently adversely affect other investigations of the
European Commission, as it would undermine the climate of mutual trust required to
resolve disputes between the European Commission and the Member State without
having to use the judicial phase of the infringement procedure. It would have a negative
5 Judgment of the Court of Justice of 10 December 2002,
European Commission v Ireland, C-362/01,
EU:C:2002:739, paragraphs 15 and 16.
6 Judgment of the Court of Justice of 14 November 2013,
Liga para a Protecção da Natureza and
Finland v European Commission, Joint Cases C-514/11 P and C-605/11 P,
EU:C:2013:738,
paragraphs 55 and 65-68.
7 Judgment of the General Court of 11 December 2001,
Petrie and Others v European Commission,
T-191/99, EU:T:2001:284, paragraph 68.
4
effect on the extent to which the European Commission can conduct negotiations with
the Member State with the objective that the Member State complies voluntarily with
European Union law.
Having regard to the above, I consider that the use of the exception under Article 4(2),
third indent, of Regulation (EC) 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 (EC) 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 exceptions
laid down in Article 4(2), first indent, of Regulation (EC) No 1049/2001.
It must also be underlined that the Court of Justice confirmed that a presumption of non-
disclosure excludes the possibility to grant partial access to the file .8
4.
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.
In your confirmatory application, you argue that such overriding public interest exists in
the case at hand. In this context, you point out that ‘Sferia submitted an application for
re-allocation of frequency from 800 Mhz band and the relevant proceedings in this
context are ongoing’ {original quote: ‘Sferia złożyła […] wniosek o udzielenie
rezerwacji częstotliwości 800 Mhz na kolejny okres i trwa postępowanie w tym
zakresie’}. In this regard, you underline that ‘in the view of Sferia, the correct allocation
of the frequencies in question is in the public interest. On the other hand, Sferia should be
able to take a reasoned decision concerning the allocation of the frequency in question,
with full knowledge regarding the legal status of the proceedings of the European
Commission’ {original quote: ‘Sferia uważa, ze właściwe zagospodarowanie
częstotliwości będącej przedmiotem wniosku leży w interesie publicznym. Sferia
natomiast powinna podjąć decyzje w sprawie rezerwacji przedmiotowej częstotliwości
posiadając pełnię wiedzy na temat stanu prawnego postepowania jakie toczy się przed
Komisją Europejską’}. This, in your view, translates into the overriding public interest
that warrants the public disclosure of the documents concerned.
Please note in this respect, however, that the above-mentioned motives constitute a
private interest (of Sferia), and can therefore not be considered as an overriding public
8
Judgment of the General Court of 25 March 2015,
Sea Handling v Commission,
T-456/13,
EU:T:2015:185, paragraph 93.
5
interest in disclosure. Indeed, as confirmed by the Court of First Instance in its
Sison9 and
Franchet and Byk10 judgments, ‘the purpose of the Regulation is to guarantee access for
everyone to public documents and not only access for the requesting party to documents
concerning him and it follows that the applicants’ application must be examined in the
same way as an application from any other person’.
Furthermore, the individual interest that a party may invoke when requesting access to
documents cannot be taken into account for the purpose of assessing the possible
existence of an overriding public interest.11
Nor have I been able, based on the elements at my disposal, to establish the existence of
any overriding public interest in disclosure of the documents in question. In any case, I
consider that the public interest is better served in this case by ensuring the conclusion, in
all serenity, of the procedure and the related exchanges with the Member State, without
jeopardising the dialogue between the European Commission and the Member State for
which, as pointed out above, a climate of trust is essential.
In consequence, 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 protected by Article 4(2), third indent of Regulation (EC) No 1049/2001.
The fact that the documents relate to an administrative procedure and not to any
legislative act, for which the Court of Justice has acknowledged the existence of wider
openness12, provides further support to this conclusion.
9 Judgment of the Court of First Instance of 26 April 2005,
Sison v Council
Joint Cases T-110/03, T-150/03 and T-405/03, EU:T:2005:143, paragraphs 50-55, Judgment of the
Court of 1 February 2007,
Sison v Council, C-266/05 P, EU:C:2007:75, paragraphs 43-48 and
judgment of the Court of First Instance of 9 September 2008,
MyTravel v Commission, T-403/05,
EU:T:2008:316, paragraph 66.
10 Judgment of the Court of First Instance of 6 July 2006,
Yves Franchet and Daniel Byk v Commission,
Joint Cases T-391/03 and T-70/04, EU:T:2006:190, paragraph 82.
11 Judgment of the General Court of 20 March 2014,
Reagens v Commission, T-181/10, EU:T:2014:139,
paragraph 144.
12 Judgment of the Court of Justice of 29 June 2010,
Commission v Technische Glaswerke Ilmenau,
C-139/07, EU:C:2010:376, paragraph 60.
6
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
7