Judgments nº T-495/08 of The General Court, December 10, 2010

• Resolution Date: December 10, 2010
• Issuing Organization: The General Court
• Decision Number: T-495/08

In Cases T‑494/08 to T‑500/08 and T‑509/08,

Ryanair Ltd, established in Dublin (Ireland), represented by E. Vahida and I.‑G. Metaxas-Maragkidis, lawyers,

applicant,

v

European Commission, represented by C. O’Reilly and P. Costa de Oliveira, acting as Agents,

defendant,

APPLICATIONS for annulment of the Commission’s implied decisions refusing to grant the applicant access to certain documents relating to procedures for reviewing State aid allegedly granted to the applicant by the operators of the airports of Aarhus (Denmark) (Case T‑494/08), Alghero (Italy) (Case T‑495/08), Berlin‑Schönefeld (Germany) (Case T‑496/08), Frankfurt‑Hahn (Germany) (Case T‑497/08), Lübeck‑Blankensee (Germany) (Case T‑498/08), Pau‑Béarn (France) (Case T‑499/08), Tampere‑Pirkkala (Finland) (Case T‑500/08) and Bratislava (Slovakia) (Case T‑509/08), and, in the alternative, applications for annulment of the subsequent express decisions refusing access to those documents,

THE GENERAL COURT (Eighth Chamber),

composed of S. Papasavvas (Rapporteur), acting as President, N. Wahl and A. Dittrich, Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 7 July 2010,

gives the following

Judgment

Background to the dispute

1 Between 2002 and 2006, the Commission of the European Communities received several complaints concerning alleged State aid granted to the applicant, Ryanair Ltd, by the operators of the airports of Aarhus (Denmark), Alghero (Italy), Berlin‑Schönefeld (Germany), Frankfurt-Hahn (Germany), Lübeck-Blankensee (Germany), Tampere-Pirkkala (Finland) and Bratislava (Slovakia).

2 In addition, on 26 January 2007, the Commission received a notification from the French authorities concerning contracts concluded by the Chambre de commerce et d’industrie de Pau-Béarn (France) (Pau-Béarn Chamber of Commerce and Industry) with the applicant and one of its subsidiaries.

3 In each case, the Commission initiated formal investigation procedures in respect of the aid allegedly granted to the applicant. Summaries of those decisions, informing parties concerned of the possibility of submitting their comments, were published in the Official Journal of the European Union.

4 By letter of 20 June 2008 (Case T‑509/08) and by letters of 25 June 2008 (Cases T‑494/08 to T‑500/08), the applicant requested the Commission to grant it access, under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), to the files concerning the State aid allegedly granted to it by the operators of Aarhus, Alghero, Berlin-Schönefeld, Frankfurt-Hahn, Lübeck-Blankensee, Pau-Béarn, Tampere-Pirkkala and Bratislava airports.

5 The applicant requested access, in particular, to the complaints and notification received by the Commission, to comments submitted by third parties, to letters and other messages exchanged between the Commission, the Member States concerned and the operators of the airports concerned, to documents provided to the Commission by the Member States and the operators of the airports concerned and to any other documents in the Commission’s files, including analyses made by the Commission of documents received, studies, reports, surveys, and interim conclusions leading to the Commission’s decisions to initiate the formal investigation procedures. The applicant stated that, where parts of documents listed in its request were covered by exceptions to the right of access, it requested access to the parts of those documents which were not covered by those exceptions.

6 By letters of 10 July 2008 (Case T‑509/08), 15 July 2008 (Case T‑499/08), 17 July 2008 (Cases T‑496/08, T‑498/08 and T‑500/08), 22 July 2008 (Cases T‑494/08 and T‑497/08) and 24 July 2008 (Case T‑495/08), the Commission refused to grant access to the documents listed in the applications, with the exception of the decisions to initiate a formal investigation procedure, as published in the Official Journal of the European Union.

7 By confirmatory applications registered on 11 August 2008 (Case T‑509/08) and 25 August 2008 (Cases T‑494/08 to T‑500/08), the applicant requested the Commission to reconsider its refusals and to grant the applicant access to the documents listed in the initial requests.

8 By letters of 2 September 2008 (Case T‑509/08) and 15 September 2008 (Cases T‑494/08 to T‑500/08) (‘the first letters extending the time-limit’), the Commission informed the applicant that it had not been able to gather all the elements necessary to carry out a proper analysis of the requests for access and that it was not in a position to take final decisions. Consequently, the Commission, in each case, extended the time-limit for replying by 15 working days.

9 By letters of 23 September 2008 (Case T‑509/08) and 6 October 2008 (Cases T‑494/08 to T‑500/08) (‘the second letters extending the time-limit’), the Commission informed the applicant that it was not in a position to take final decisions despite the extension of the time-limit and that it was doing its utmost to provide the applicant with final replies as soon as possible.

10 By letters of 26 September 2008 (Case T‑509/08), 8 October 2008 (Case T‑495/08), 9 October 2008 (Case T‑494/08), 23 October 2008 (Case T‑499/08), 31 October 2008 (Case T‑500/08), 20 November 2008 (Case T‑496/08), 6 January 2009 (Case T‑498/08) and 18 February 2009 (Case T‑497/08) (‘the express decisions’), the Commission informed the applicant that it was refusing to grant it access to the documents requested, with the exception of (a) three requests from the Danish authorities for extension of a time-limit (Case T‑494/08); (b) two e‑mails from the Italian authorities requesting an extension of a time-limit and two letters from the Commission granting an extension (Case T‑495/08); (c) three requests for extension of a time-limit lodged by the German authorities and four positive replies from the Commission (Case T‑496/08); (d) a positive reply from the Commission to a request from the German authorities for extension of a time-limit (Case T‑497/08); (e) two requests for extension of a time-limit lodged by the German authorities and three positive replies from the Commission (Case T‑498/08); (f) a request for extension of a time-limit from the French authorities and a letter from the Commission granting that extension (Case T‑499/08); (g) two requests for extension of a time‑limit by the Finnish authorities and two letters from the Commission granting the extensions sought (Case T‑500/08); and (h) two requests for extension of a time-limit lodged by the Slovak authorities (Case T‑509/08).

11 In essence, the Commission took the view that the other documents covered by the applicant’s requests were wholly covered by the exceptions laid down in the third indent of Article 4(2) of Regulation No 1049/2001 (exception relating to the protection of the purpose of inspections, investigations and audits) and in the first subparagraph of Article 4(3) of Regulation No 1049/2001 (exception relating to the protection of the decision-making process prior to the adoption of a decision). The Commission further took the view that certain documents were also covered by the exceptions laid down in the first indent of Article 4(2) (exception relating to the protection of commercial interests), in the second subparagraph of Article 4(3) (exception relating to the protection of the decision‑making process after the adoption of a decision), and, in Cases T‑494/08, T‑496/08, T‑497/08, T‑499/08 and T‑500/08, in the second indent of Article 4(2) (exception relating to the protection of legal advice) of Regulation No 1049/2001. The Commission also decided that no overriding public interest justified disclosure of the documents and that it was impossible to grant partial access because the documents were wholly covered by at least two exceptions.

Procedure and forms of order sought by the parties

12 The applicant brought the present actions by applications lodged at the Registry of the General Court on 7 November 2008 (Case T‑509/08) and 14 November 2008 (Cases T‑494/08 to T‑500/08).

13 By letters of 22 December 2008, 9 January and 20 February 2009, the applicant sought leave to amend its claims and pleas in law in Cases T‑496/08, T‑498/08 and T‑497/08 respectively following the notification of the express decisions adopted by the Commission. The Court granted that leave on 29 January and 26 March 2009.

14 By letter of 14 August 2009, the applicant requested that Cases T‑494/08, T‑495/08, T-496/08, T-497/08, T-498/08, T-499/08, T‑500/08 and T-509/08 be joined and that measures of organisation of procedure be ordered.

15 By order of 14 October 2009, the President of the Eighth Chamber of the Court ordered that the cases be joined for the purposes of the oral procedure.

16 By order of 25 November 2009, pursuant to Articles 65(b) and 66(1) and the third subparagraph of Article 67(3) of the Court’s Rules of Procedure, the President of the Eighth Chamber of the Court ordered the Commission to produce copies of all of the documents to which it had refused access. The Commission complied with that order.

17 By letter of 12 March 2010, the Court, by way of measures of organisation of procedure as provided for in Article 64 of the Rules of Procedure, put to the parties a number of written questions, to which the parties replied within the period laid down.

18 Since the cases at issue were considered to raise a question of interpretation identical to that raised in Case C‑139/07 P Commission v Technische Glaswerke Ilmenau, which was pending before the Court of Justice, the President of the Eighth Chamber of the General Court, by order of 12 April 2010, pursuant to the third paragraph of Article 54 of the Statute of the Court of Justice and Article 77(a) of the Rules of Procedure, after hearing the parties...