Judgments nº T-136/15 of Tribunal General de la Unión Europea, December 14, 2017

• Resolution Date: December 14, 2017
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-136/15

In Case T-136/15,

Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented initially by I. Ampazis and M. Sfyri, and subsequently by M. Sfyri and C.-N. Dede, lawyers,

applicant,

supported by

Kingdom of Sweden, represented by E. Karlsson, L. Swedenborg, A. Falk, C. Meyer-Seitz, U. Persson and N. Otte Widgren, acting as Agents,

intervener,

v

European Parliament, represented initially by N. Görlitz, N. Rasmussen and L. Darie, and subsequently by N. Görlitz, L. Darie and C. Burgos, acting as Agents,

defendant,

APPLICATION on the basis of Article 263 TFEU seeking the annulment of the decision of the European Parliament of 13 February 2015 refusing to grant access to the requests for quotation in all lots of Call for Tenders ITS08 - External service provision for IT services 2008/S 149-199622,

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín and I. Reine (Rapporteur), Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure and further to the hearing on 31 January 2017,

gives the following

Judgment

Background to the dispute and the contested decision

1 The applicant, Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, participated in a call for tenders made by the European Parliament under reference ITS08 - External service provision for IT services 2008/S 149-199622, concerning 16 different lots of a total value of EUR 300 million (‘CT ITS08’). Following that call for tenders, it signed, on 26 October 2009, a framework contract with the Parliament concerning lot 7, entitled ‘Development expertise in documentary applications and content management systems’ (‘Lot 7’).

2 By letter dated 14 November 2014, the applicant asked the Parliament for access to ‘all available information concerning all the requests for quotation which were issued by the [Parliament] for all lots [of CT ITS08]’ (‘the requests for quotation’ or ‘the documents requested’). The applicant sought to obtain a copy of these requests for quotation, including their technical annexes, within 15 working days of receipt of its letter. In support of its request, the applicant stated that it was suspicious of the irregular attribution by the Parliament of some tasks in Lot 7 to co-contractors used for other lots, in particular Lot 6, and that it wished to ascertain the extent of the harm suffered as a result of these allegedly unlawful attributions.

3 By email of 17 November 2014, and by letter of the same date, the Parliament acknowledged receipt of the initial request for access to the requests for quotation and informed the applicant that that request would be examined in the light of the provisions of 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).

4 By email of 3 December 2014, the Parliament informed the applicant that, given the large number of documents to be examined individually, ‘largely over 1 000’, it could not meet the deadlines laid down by Regulation No 1049/2001. In that context, it suggested to the applicant that a ‘fair solution’ be sought within the meaning of Article 6(3) of that regulation, consisting of screening and communicating the documents requested for each of the lots according to an established calendar. The Parliament also suggested that the documents in Lot 7 should first be examined by 31 January 2015, and then those in Lot 6.

5 On 5 December 2014, the applicant replied to the Parliament, stating that it could not accept its proposal. In its view, all the documents requested were stored electronically and registered in electronic form, so that their disclosure would not entail an excessive workload for the Parliament. In addition, the applicant stated that, if the examination of each lot were to take two months, as under the time limit proposed by the Parliament for the examination of the documents in Lot 7, the applicant would have to wait almost three years to obtain all the documents requested. The applicant stated that, in its view, the Parliament’s proposal amounted to refusal to grant access. Accordingly, it made a confirmatory application for access to obtain all the documents required by 31 January 2015.

6 By email of 9 December 2014, the Parliament made it clear that its proposal of 3 December 2014 in no way constituted refusal to grant access to the requested documents. It also sought an extension of the time limit of 15 working days in which to respond to the initial request for access, in accordance with Article 7(3) of Regulation No 1049/2001.

7 By email of 17 December 2014, the applicant reiterated its request for disclosure of ‘all the information ... requested’ by the end of January 2015. The applicant also told the Parliament that, by its proposal of 3 December 2014, the latter had not seriously attempted to seek a fair solution, since the documents in Lot 7, which Parliament had suggested be examined first, were already in the applicant’s possession. According to the applicant, it would be appropriate to begin by examining the documents in Lot 6.

8 By decision of 18 December 2014, the Parliament rejected the initial request for access to the requests for quotation on the ground that, after an individual examination of some of the numerous documents requested, it emerged that the information contained in them was covered by exceptions to the right of access laid down in Article 4 of Regulation No 1049/2001. In addition, according to the Parliament, it could be presumed that those exceptions would apply to other documents requested, since they were of the same nature as those which had been examined. In the alternative, the Parliament stated that an individual examination of all the documents requested would represent a disproportionate workload.

9 By letter of 12 January 2015, the applicant made a confirmatory request for access to all the requests for quotation. The Parliament acknowledged receipt of that confirmatory request for access by email of 19 January 2015.

10 By email of 2 February 2015, the Parliament extended the time limit for responding to the applicant’s confirmatory request by 15 working days, in accordance with Article 8(2) of Regulation No 1049/2001.

11 By decision of 13 February 2015, the Parliament refused access to all the documents requested by the applicant (‘the contested decision’).

12 In the contested decision, the Parliament argued, first of all, that no obligation to disclose requests for quotation flowed from Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1; ‘the Financial Regulation’) or from Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 (OJ 2012 L 362, p. 1; ‘the Delegated Regulation’).

13 As regards the limits on the right of access, the Parliament stated, in essence, that the examination of the documents requested had confirmed that certain requests for quotation contained information covered by the exceptions provided for in Article 4 of Regulation No 1049/2001.

14 Firstly, certain documents revealed the details of the Parliament’s IT architecture which, combined with publicly available information in this regard, could jeopardise the security of that system. The Parliament referred in particular to security software, to applications used to manage building security parameters, such as the placing of surveillance cameras, and to the names of the applications used for logistics. Thus, according to the Parliament, the protection of public security justified refusal of access to the documents requested.

15 Secondly, some of the requests for quotation examined contain personal data, such as names, professional profiles and seniority levels of consultants providing services to Parliament. Since the necessity of disclosing of such data had not been at all established, in the view of the Parliament, access to the documents requested had to be refused to protect the privacy of the persons concerned.

16 Thirdly, the documents requested contain information of an economic and technical nature, the presentation of which could reveal the Parliament’s profile as a buyer in the market. In addition, the requests for quotation could contain information on the particular skills of the suppliers selected for each lot as well as details of their commercial strategy and alliances or links with third parties. The protection of commercial interests, namely those of the economic actors involved and of the Parliament, also justified, in the view of the Parliament, refusing all access to the documents requested.

17 Fourthly, disclosure of the documents requested could undermine the Parliament’s decision-making process in so far as it would reveal information relating to certain on-going information technology projects in respect of which a decision has not yet been adopted. According to the Parliament, this could block a long-term organisational strategy that it had developed in that area.

18 In the contested decision, the Parliament has also argued that there is no overriding public interest able to prevent application of the exceptions relating to the protection of commercial interests and of the decision-making process. In that regard, it stated that the private interest of the applicant, which claimed that it had suffered damage as a result of irregularities in the manner in which the Parliament executed the public contract in question, could not be taken into account.

19 The Parliament also stated in the contested decision that, even...