Ref. Ares(2021)1561740 - 01/03/2021
EUROPEAN COMMISSION
Brussels, 28.10.2020
C(2020) 7590 final
,
05-530 Gora Kalwaria
Poland
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 2020/4953
Dear
,
I refer to your letter of 15 September 2020, registered on 16 September 2020, 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 21 August 2020, addressed to the Directorate-General for
Competition of the European Commission, you requested access to, I quote: ‘[the]
notification form submitted by Poland on 23 April 2020 regarding scheme on the basis of
Article 107(2)(b) [of the Treaty on the Functioning of the EU] which gives grounds for
Commission decision dated 29.5.2020 C(2020)3656 final - State Aid SA.57054
(2020/N)–Poland COVID-19: The Polish anticrisis measures – aid for damage
compensation and to improve the liquidity of undertakings affected by the COVID-19
outbreak’.
1
OJ L 345, 29.12.2001, p. 94.
2
OJ L 145, 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
In its initial reply of 31 August 2020, the Directorate-General for Competition refused
access to the document concerned, based on the exceptions provided for in Article 4(2),
third indent, of Regulation (EC) No 1049/2001 (protection of the purpose of inspections,
investigations and audits) and the first subparagraph of Article 4(3) of the said regulation
(protection of the ongoing decision-making process).
In your confirmatory application, you request a review of this position.
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 access to the requested document has to
be refused, based on the exception in the third indent of Article 4(2) (protection of the
purpose of inspections, investigations and audits) of Regulation (EC) No 1049/2001.
The detailed reasons are set out below.
2.1. Protection of the purpose of investigations
The third indent of Article 4(2) 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 your confirmatory application, you ask that the European Commission, I quote, ‘[…]
provide[s] the requested documents after the time-limit to bring proceedings before the
General Court expired’.
As a preliminary point and as referred to by the Directorate-General for Competition in
its initial reply, in its judgment in
Commission v
TGI3, 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.
3 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.
2
The Court reasoned that such disclosure would call into question the State aid procedural
system.4 This reasoning was further confirmed in the
Sea Handling judgment.5 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.6 Hence, the
general presumption continues to apply even if the European Commission has already
rendered its decision in a specific State aid case.
The document to which you requested access forms part of the administrative file of case
SA.57054 concerning an investigation into the
alleged State aid granted by the Polish
authorities in the context of the damage compensation scheme to improve the liquidity of
undertakings affected by the COVID-19 outbreak. The investigation lead to the
conclusion that the notified aid scheme is compatible with the internal market in
accordance with Article 107(2)(b) and Article 107(3)(b) of the Treaty on the Functioning
of the European Union.
Although the European Commission has indeed taken a decision regarding the State aid
on 29 May 20207, the requested document forms part of the state aid investigation and
the general presumption of confidentiality continues to apply despite the closure of the
preliminary investigation phase8.
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.
4 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.
5 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.
6
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.
7
https://ec.europa.eu/competition/state_aid/cases1/202023/285705_2161296_70_2.pdf
8
Judgment in ‘
Sea Handling v
Commission’, referred to above, paragraph 43.
3
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.9
Consequently, the requested document is 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.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in the first and third indents of 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 (as opposed to any possible private interests of the
applicant) and, secondly, outweigh the harm caused by disclosure.
In your confirmatory application, you do not refer to any particular public interest that could
counter-weigh the need to protect the interests in Article 4(2), first and third indents of
Regulation (EC) No 1049/2001. Instead, you underlined that, I quote, ‘[…] that the purpose
of the Regulation 1049/2001 is to ensure the widest possible access to documents’.
In this context, please note, that general considerations cannot provide an appropriate
basis for establishing that the principle of transparency was in this case especially
pressing and capable, therefore, of prevailing over the reasons justifying the refusal to
disclose the documents in question10.
Nor have I been able to identify any public interest capable of overriding the public and
private interests protected by the third indent of Article 4(2) of Regulation (EC) No
1049/2001.
Moreover, 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 openness11, provides further support to this conclusion.
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 requested.
9
Commission v
Technische Glaswerke Ilmenau, paragraphs 58 to 61.
10 Judgment of the Court of Justice of 14 November 2013,
Liga para a Protecção da Natureza (LPN)
and Republic of Finland v
European Commission, Joined Cases C-514/11 P and C-605/11 P,
EU:C:2013:738, paragraph 93.
11 Judgment in
Commission v TGI, cited above, paragraphs 53-55 and 60;
Commission v
Bavarian Lager
judgment, cited above, paragraphs 56-57 and 63.
4
In your confirmatory application, you ask that the European Commission provides the
document, I quote, ‘[…] without sensitive data or confidential information if such were
indicated in the notification by the Member State’
However, as stated by the Court of Justice12, 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 part.
Consequently, I have come to the conclusion that the documents requested are covered in
their entirety by the invoked exceptions to the right of public access.
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
Ilze JUHANSONE
Secretary-General
12 Judgment of the Court of Justice of 28 June 2012,
European Commission v
Odile Jacob, C-404/10 P,
EU:C:2012:393, paragraph 133.
5
