EUROPEAN COMMISSION
Brussels, 27.5.2019
C(2019) 4102 final
DE - 29525 Uelzen
Germany
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 2019/1811
Dear
,
I refer to your letter of 25 April 2019, registered on 26 April 2019, in which you
submitted 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 25 March 2019, addressed to the Directorate-General for
Taxation and Customs Union, you requested access to ‘[a]ll emails, letters, meetings,
telephone conversations, or any document or information related to the infringement
procedure number 201741213 - with all attachments and irrespective of its form or
language’.
In its initial reply of 11 April 2019, the Directorate-General for Taxation and Customs
Union refused access to the documents in question, based on the exception of
Article 4(2), third indent of Regulation (EC) No 1049/2001 (protection of the purpose of
inspections, investigations and audits).
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
3 The reference number used by the European Commission is 2017/4121.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
In your confirmatory application, you request a review of this position. You underpin
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.
Following this review, I regret to inform you that I have to confirm the initial decision of
the Directorate-General for Taxation and Customs Union and refuse access to the
documents forming part of the infringement proceedings in case 2017/4121, based on the
exception defined in Article 4(2), third indent (protection of the purpose of inspections,
investigations and audits), for the reasons set out below.
2.1. Protection of the purpose of inspections, investigations and audits
Article 4(2), third indent 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.’
The documents to which you request access form part of an ongoing 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.4
The Court has interpreted Article 4(2), third indent of Regulation (EC) No 1049/2001,
among others, 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.5 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
4 Judgment of the Court of Justice of 10 December 2002,
Commission v Ireland, C-362/01,
EU:C:2002:739, paragraphs 15 and 16.
5 Judgment of the Court of Justice of 14 November 2013,
LPN and Finland v Commission, Joined Cases
C-514/11 P and C-605/11 P, EU:C:2013:738, paragraphs 55, 65-68.
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Justice’.6
Also, in the
ClientEarth judgment, 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’.7
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
(protection of the purpose of inspections, investigations and audits) of Regulation (EC)
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 concern infringement procedure
2017/4121, which is still ongoing.
Please note in this respect that in the
Sea Handling v Commission judgment, the Court of
Justice stated that the general presumption applies even to one single document.8
As confirmed in the above-mentioned case law, public disclosure of the requested
document would negatively influence the dialogue between the European Commission
and Germany, for which a climate of trust is essential. This climate of mutual trust
between the European Commission and Germany must be ensured throughout the
different stages of the procedure concerned, at least until the investigation is definitively
closed. Disclosure of the requested documents at this stage would be incompatible with
that aim.
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.
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 do not put forward any reasoning pointing to an
overriding public interest in disclosing the documents requested.
6 Judgment of the General Court of 11 December 2001,
Petrie and Others v Commission, T-191/99,
EU:T:2001:284, paragraph 68.
7
Judgment of the General Court of 13 September 2013,
ClientEarth v European Commission, T-111/11,
EU:T:2013:482, paragraph 80.
8
Judgment of the Court of Justice of 14 July 2016,
Sea Handling v Commission, C-271/15 P,
EU:C:2016:557, paragraph 41.
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Nor have I been able to identify any public interest capable of overriding the public and
private interests protected by Article 4(2) of Regulation (EC) No 1049/2001.
In any case, I consider that in this specific case, the public interest is better served by
protecting the purpose of the ongoing investigation.
Therefore, I have not been able to identify any public interest that would outweigh the
need for protection the purpose of the ongoing investigation in this specific case.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting partial access to the documents, as requested in your confirmatory
application.
You have requested access to ‘documents and information of the infringement procedure
that are not affecting […] climate of mutual confidence’.
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 documents you requested are
covered in their entirety by the invoked exception to the right of public access and it is
not possible to grant further partial access to them without affecting the ongoing
infringement procedure.
In order to accomplish the objective of transparency towards the public, the European
Commission published on 24 January 2019 and 8 March 2018 press releases on,
respectively, the reasoned opinion and the letter of formal notice regarding this
infringement procedure, that are available here:
http://europa.eu/rapid/press-
release_MEMO-19-462_en.htm and http://europa.eu/rapid/press-release_MEMO-18-
1444 en.htm.
For this reason, they contain only a general description of the issues and cannot be
regarded as a partial disclosure. A detailed description would not significantly improve
the general awareness while, as mentioned above, it could negatively affect the dialogue
between the European Commission and the concerned Member State.
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.
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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
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