Ref. Ares(2020)5931722 - 26/10/2020
EUROPEAN COMMISSION
Brussels, 22.7.2019
C(2019) 5602 final
Avenue Louise 480
1050 Brussels
Belgium
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 2019/2311
Dear
I refer to your letter of 15 May 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’).
Please accept our apologies for this late reply.
1.
SCOPE OF YOUR REQUEST
In your initial application of 12 April 2019, you requested access, on behalf of AlzChem
Group AG, to the:
‘[…] relevant Commission documents (including but not limited to Excel
spreadsheets, Word documents or internal databases) which contain information
on the status of recovery and the amount of the State aid recovered by Slovakia
further to Commission Decision of 15 October 2014 on State aid SA.33797 –
(2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia’.
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 24 April 2019, the Directorate-General for Competition refused
access to the documents in question based on the exceptions of Article 4(2), first indent
(protection of the commercial interests of a natural or legal person) and third indent
(protection of the purpose of inspections, investigations and audits) and Article 4(3)
(protection of the decision-making process) of Regulation (EC) No 1049/2001.
In your confirmatory application, you requested a review of the position of the
Directorate-General for Competition. You put forward detailed arguments, which I will
address 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 confirm the initial decision of
Directorate-General for Competition to refuse access, based on the exceptions of Article
4(2), first indent (protection of the commercial interests) and third indent (protection of
the purpose of inspections, investigations and audits) of Regulation (EC) No 1049/2001,
for the reasons set out below.
2.1. Protection of the purpose of investigations and of commercial interests
Article 4(2), first 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 commercial interests of a natural or legal person, including intellectual
property, […], unless there is an overriding public interest in disclosure’.
Article 4(2), third indent of Regulation (EC) No 1049/2001 provides that the
‘[i]nstitutions shall refuse access to a document where disclosure would undermine the
protection of […] the purpose of inspections, investigations and audits’.
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 (EC) No
1049/2001 and two different exceptions can, as in the present case, be closely
connected’.3 In your confirmatory application, you argue that the Directorate-General for
Competition committed an error in refusing access to the requested documents, because
your request ‘does not concern any document or information contained in the
Commission’s case file regarding the State aid implemented by Slovakia’. In particular,
you argue that your request:
3 Judgment of the General Court of 13 September 2013,
Netherlands v European Commission,
T-380/08, EU:T:2013:480, paragraph 34.
2
- ‘[…] does not concern documents and information collected or received further to
the opening and in the course of an investigation against a Member State or a
third-party, but rather
after the Decision had been issued.
- It concerns documents and information that are
not substantive, and will not
affect the outcome of any further State aid investigation or proceedings by the
Commission or by the EU Courts.
- It concerns
specific factual information, traced by the Commission, regarding the
status of implementation of the Decision’.
Furthermore, you argue that, I quote, ‘[t]he Request does not concern any substantive
submission of the Member State, for example, containing sensitive data including
information related to the economic activities of undertakings. Therefore, the fulfilment
of the Request cannot be perceived to jeopardise the willingness of the Member States to
cooperate with the Commission’s investigations’.
As a preliminary point, I would like to point out that in its judgment in
Commission v TGI4, which concerned a request for documents in two State aid cases, the Court of
Justice held that there exists, with regard to the exception related to the protection of the
purpose of investigations, a general presumption that the 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 system.5 This reasoning
was further confirmed in the
Sea Handling judgment.6 Recently, in the
Arca Capital
Bohemia judgment, the General Court held that the general presumption also applies to
State aid procedures that are already closed.7 Hence, the general presumption continues
to apply even if the European Commission has already rendered its decision in a specific
State aid case.
You are requesting access to documents, which contain information on the status of
recovery and the amount of the State aid recovered by Slovakia further to Commission
Decision of 15 October 2014 in State aid case SA.33797. The documents to which you
request access form part of the Commission’s administrative file of the State aid
investigation. Although the European Commission has indeed taken a decision regarding
the State aid on 15 October 20158, the recovery of the unlawful State aid has not been
completed yet. The purpose of the State aid investigation is to ensure that the competition
is not distorted through an unlawful State aid, thus making it necessary to recover any
4 Judgment of the Court of Justice of 29 June 2010,
Commission v Technische Glaswerke Ilmenau,
(hereafter ‘
Commission v Technische Glaswerke Ilmenau’), C-139/07, EU:C:2010:376, paragraphs 52
to 61.
5 See also judgment of the Court of Justice of 21 September 2010,
Sweden and Others v API and
Commission, C-514/07 P, EU:C:2010:376, paragraphs 99 and 100, as well as judgment of the Court of
Justice of 28 June 2012,
Commission v Odile Jacob, (hereafter ‘
Commission v Odile Jacob’), C-
404/10P, EU:C:2012:393, paragraphs 108 to 126, where the Court of Justice applied
Commission v
TGI by analogy to merger proceedings.
6 See also judgment of the Court of Justice 14 July 2016,
Sea Handling v Commission, (hereafter ‘
Sea
Handling v Commission’), C-271/15 P, EU:C:2016:557, paragraphs 36 to 47.
7
Judgment of the General Court of 11 December 2018,
Arca Capital Bohemia v Commission, T-
440/17, EU:T:2018:898, paragraphs 56 to 58.
8 http://ec.europa.eu/competition/elojade/isef/case details.cfm?proc code=3 SA 33797.
3
such aid. It is in this context that the procedure of determining a State aid as not
compatible with the internal market is followed by a decision to abolish or alter such aid
within a period of time to be determined by the Commission, as stipulated in Article 108,
paragraph 2 of the Treaty on the Functioning of the European Union. A failure of the
Member State concerned to comply with this decision may lead to the opening of an
infringement procedure.
Consequently, documents pertaining to recovery of a State aid continue to form part of
the administrative file of the State aid investigation, even after the decision about the
unlawful character of the State aid has been taken. Contrary to what you argue in this
case, the documents you request are part of the administrative file of the European
Commission in State aid case SA.33797. These documents contain details on the state of
play of the recovery process and the aid amounts to be recovered by the Slovak
authorities.
I would also like to point out that the Member State concerned has to comply with the
Commission decision declaring a State aid as unlawful. In this phase of the procedure,
the European Commission continues to have a constructive dialogue with the Member
State concerned in order to ensure an optimal compliance with the decision taken.
Indeed, this is a procedural phase whereby the European Commission verifies, with the
active cooperation of the Member State concerned, the correct implementation of the
State aid decision. Its purpose is to make sure that the concerned Member State complies
with the decision and it takes place in a structured and formalised Commission
procedure, which is an investigation in the meaning of Article 4(2) third indent of
Regulation (EC) No 1049/2001. In case the Member State concerned does not comply
with the Commission decision, an infringement procedure may be initiated.
In this context, the Court of Justice ruled in
France v Schlyter that ‘[w]ithout there being
any need to identify an exhaustive definition of ‘investigation’, within the meaning of the
third indent of Article 4(2) of Regulation No 1049/2001, a structured and formalised
Commission procedure that has the purpose of collecting and analysing information in
order to enable the institution to take a position in the context of its functions provided
for by the EU and FEU Treaties must be considered to be an investigation’.9
Furthermore, the Court stressed that ‘[t]hose procedures do not necessarily have to have
the purpose of detecting or pursuing an offence or irregularity. The concept of
‘investigation’ could also cover a Commission activity intended to establish facts in order
to assess a given situation’.10
Regarding State aid proceedings, as stated by the General Court in the
Port de Brest
judgment, the concept of ‘investigation’ does not only aim to protect the investigation
proceedings targeting specific companies.11 In contrast, as specified in the
France v
9
Judgment of the Court of Justice of 7 September 2017,
France v Schlyter, C-331/15 P, (hereafter
France v Schlyter), EU:C:2017:639, paragraph 46.
10
Ibid, paragraph 47.
11
Judgment of the General Court of 19 September 2018,
Port de Brest v Commission, T-39/17,
(hereafter
Port de Brest v Commission), EU:T:2018:560, paragraph 70.
4
Schlyter judgment
, the concept of investigation, appearing in the third indent of
Article 4(2) of Regulation (EC) No 1049/2001, is an autonomous concept of EU law
which must be interpreted taking into account, inter alia, its usual meaning as well as the
context in which it occurs.12
It follows from this reasoning and from Article 108 (2) of the Treaty on the Functioning
of the EU itself, that there exists a procedural continuity between the phase of adoption
of the final State aid decision, and the phase of its execution, as both are interlinked.
Furthermore, taking into account the wide definition of the concept of investigation
provided by the
France v Schlyter judgment, and confirmed by the
Port De Brest judgment13, the measures and actions taken by the European Commission at the stage of
the implementation of a Commission decision regarding the unlawfulness of a State aid
are also investigation activities.
Consequently, the documents you request do not only form part of the administrative file
relating to the State aid investigation, but are also part of an investigation concerning the
implementation of the Commission decision relating to an unlawful State aid.
As the Directorate-General for Competition rightly pointed out, the State aid review
procedure is strictly bilateral between the European Commission and the Member State.
This often involves a lengthy dialogue in which very sensitive information is exchanged,
under the understanding that it will remain confidential. Natural and legal persons
submitting information to the European Commission have a legitimate right to expect
that the information they supply on an obligatory or voluntary basis will not be disclosed
to the public. This legitimate right arises from the specific provisions concerning the
professional secrecy obligation, which provides for documents to be used only for the
purposes for which they have been gathered, and the special conditions governing access
to the European Commission's file. The disclosure of the documents pertaining to the
State aid investigation file would thus jeopardise the willingness of Member States to
cooperate in future State aid investigations. If other interested parties were able to obtain
access, on the basis of Regulation (EC) No 1049/2001, to the documents in the European
Commission’s administrative file, including in the phase of the implementation of a
Commission decision relating to an unlawful State aid , the system for the review of State
aid and the nature of the procedure would be called into question.14
Therefore, the actions and measures undertaken by the European Commission during this
phase are intrinsically related with the Commission State aid investigation within the
meaning of Article 4, paragraph 2, third indent of Regulation (EC) No 1049/2001, for
which the Court has recognised the existence of a general presumption in competition
files.
The bilateral nature of the State aid procedure confirms this finding. The protection of the
purpose of the investigation is fundamental, in particular in cases where the correct
12
Ibid, paragraph 71.
13
Ibid, paragraph 73.
14
Commission v Technische Glaswerke Ilmenau, paragraphs 58 to 61.
5
implementation of the Commission decision and the recovery of an unlawful State aid
require to preserve the principle of confidentiality and mutual trust at any stage of the
procedure, including at the implementation stage.
In particular, this implementation phase is to be considered as a pre-litigation procedure,
similar to the procedure laid down in Article 258 of the Treaty on the Functioning of the
European Union or to the EU-Pilot procedure and for which the Court has recognised a
general presumption. 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.15
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.16 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’.17
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’.18
This applies
mutatis mutandis to the documents you request, as, failure to implement the
Commission decision concerning the unlawful State aid may lead to opening of an
infringement procedure.
Public disclosure of the requested documents, at this stage, would negatively influence
the dialogue between the European Commission and the Slovak Republic, for which a
climate of trust is essential. This climate of mutual trust between the European
Commission and the Slovak Republic 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.
15 Judgment of the Court of Justice of 10 December 2002,
Commission v Ireland, C-362/01,
EU:C:2002:739, paragraphs 15 and 16.
16 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.
17 Judgment of the General Court of 11 December 2001,
Petrie and Others v Commission, T-191/99,
EU:T:2001:284, paragraph 68.
18
Judgment of the General Court of 13 September 2013,
ClientEarth v European Commission, T-111/11,
EU:T:2013:482, paragraph 80.
6
Consequently, the requested documents 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.
In its initial reply, the Directorate-General for Competition also referred to Article 4(2)
first indent of Regulation (EC) No 1049/2001, which provides that ‘[t]he 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, […],
unless there is an overriding public interest in disclosure’.
In your confirmatory application, you argue that ‘[i]t is clear that precise information on
the status of recovery and amounts recovered by the Commission further to a State aid
Decision are
not strategic, and do
not concern the operation or development of a
business’.
In the
Odile Jacob19 judgment, the Court of Justice held that the publication of sensitive
information concerning the economic activities of undertakings subject to a control
procedure by the European Commission is likely to harm their commercial interests even
after the control procedure has been concluded. Therefore, the Court of Justice held that a
general presumption of non-disclosure of the documents in the European Commission's
case file applies, irrespective of whether a request for access concerns proceedings that
have already been closed or proceedings that are pending.
The documents in question, which are part of a State aid investigation file, have not yet
been made available to the public and contain sensitive information regarding the
undertakings involved, the public disclosure of which at this stage would harm their
commercial interests, as it might lead to a reputational damage and to various
speculations regarding the financial stability of these undertakings. Hence, I do not share
the view that the information is not
strategic, and does not
concern the operation or
development of a business.
As already mentioned, the requested documents would reveal detailed information on the
state of play and different stages of the recovery process by the undertakings concerned.
Such information is undoubtedly commercially sensitive, as it would reveal to current
and potential competitors how, from a strategical and organisational point of view, the
undertakings in question proceed in such cases and would reveal details on the different
steps they undertake in order to reimburse the illegal State aid.
Please note also that the European Commission is largely reliant on the cooperation of
third parties in order to collect the necessary evidence and to issue a final decision. The
European Commission relies on Member States’ contributions, which typically also
contain commercially sensitive information relating to companies, and access to such
documents would also, as already mentioned, undermine the Member States’ willingness
to cooperate. This, in turn, would jeopardise the European Commission’s authority and
19
Commission v Editions Odile Jacob, paragraphs 123 and 124.
7
lead to a situation where the latter would be unable to carry out properly its task of
enforcing EU competition law.
Please note that, once the State aid procedure is definitely closed including the execution
phase, the European Commission will publish the amounts of aid recovered, together
with the amount of the recovery interest. However, I note that, due to the bilateral nature
of the execution phase of the procedure, the premature disclosure of the progress of the
undertakings in recovering the amounts, before the actual recovery of the state aid
decision takes place, would harm the undertakings involved and would ultimately have
the effect of undermining the purpose of the State aid procedure, rather than it would
contribute to transparency.
Consequently, I conclude that access to the requested documents would undermine the
interests protected under Article 4(2) first and third indents (protection of the commercial
interests and the purpose of the investigations) of Regulation (EC) No 1049/2001.
3.
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 requested are
covered by a general presumption of non-disclosure based on the exceptions laid down in
Article 4(2), first and third indents (protection of the commercial interests and the
purpose of the investigations) of Regulation (EC) No 1049/2001.
The Court of Justice confirmed that a presumption of non-disclosure excludes the
possibility to grant partial access to the file.20
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. As a
preliminary remark, it must be noted that the General Court recently confirmed again that
the right of access to documents does not depend on the nature of the particular interest
that the applicant for access may or may not have in obtaining the information
requested.21
In your confirmatory application you argue the following, I quote:
‘[…] is a superior public interest and not AlzChem’s particular interest that
Commission State aid Decisions should be implemented and put into effect’.
20
Sea Handling v Commission, cited above, paragraph 93.
21
Judgment of the General Court of 27 November 2018,
VG v Commission, Joined Cases T-314/16 and
T-435/16, EU:T:2018:841, paragraph 55.
8
‘[…] it is a superior public interest and not AlzChem’s particular interest that the
budget of the Member States is protected against the devastating effects of a State
aid race between Member States and that the unlawful and incompatible State aid
is returned to the budget of the Member State concerned by a State aid Decision’.
In its decision of 15 October 2014, the European Commission held that the State aid was
unlawfully put into effect by Slovakia in breach of Article 108(3) of the Treaty on the
Functioning of the European Union and is incompatible with the internal market.
I consider that the release of the non-confidential version of the above-mentioned
decision22 has brought the requested transparency and availability of information to the
public and control over the actions of the European Commission required.
Furthermore, I note that the considerations that you put forward in order to establish an
overriding public interest are rather of a general nature. You do not explain, in a concrete
manner, why and how it is in the public interest to disclose the documents.
These general considerations would not outweigh the interests protected under Article
4(2) of Regulation (EC) No 1049/2001. In the
Port de Brest v Commission judgment23,
the General Court confirmed once again that the applicant must rely on specific
circumstances to show that there is an overriding public interest, which is able to justify
the disclosure of the documents. Moreover, in that judgment the General Court held that
among the limits with regard to the right of access to documents held by the European
Commission is the exception referred to in the third indent of Article 4(2) of Regulation
(EC) No 1049/2001, protecting the purpose of inspections, investigations and audits of
the institutions.24
In addition, I have not been able to identify any public interest that would outweigh the
interests protected in Article 4(2), first and third indents and Article (3) of Regulation
(EC) No 1049/2001.
The fact that the investigations to which the document relates are of an administrative
nature and do not relate to any legislative acts, for which the Court of Justice has
acknowledged the existence of wider openness25 as well as the fact that the European
Commission will publish recovery information after the definite closure of the recovery
procedure, including the aid amount repaid, the amount of recovery interest and the aid
amount lost on the website of the Directorate-General for Competition, provides further
support to the conclusion that there is no overriding public interest in this case.
22 http://europa.eu/rapid/press-release IP-14-1155 en.htm.
23 Judgment in
Port de Brest v Commission, cited above, paragraph 104.
24
Ibid, paragraph 112.
25 Judgment of the Court of Justice of 29 June 2010,
European Commission v
Bavarian Lager, C-28/08
P, EU:C:2010:378, paragraphs 56 to 57 and 63.
9