Judgments nº T-485/18 of Tribunal General de la Unión Europea, February 06, 2020

• Resolution Date: February 06, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-485/18

(Access to documents - Regulation (EC) No 1049/2001 - Commission documents relating to the interpretation of a provision of EU law - Documents originating from a third party - Documents originating from a Member State - Regulation (EC) No 1370/2007 - Partial refusal to grant access - Total refusal to grant access - Obligation to state reasons - Exception relating to the protection of court proceedings - Overriding public interest)

In Case T-485/18,

Compañía de Tranvías de la Coruña, SA, established in Corunna (Spain), represented by J. Monrabà Bagan, lawyer,

applicant,

v

European Commission, represented by W. Mölls and C. Ehrbar, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment of the Commission’s decision of 7 June 2018 refusing, partially or totally, to grant the applicant access to documents relating to the Commission’s opinion sent to the French Republic concerning the fact that the metro lines contract is valid until 2039,

THE GENERAL COURT (Third Chamber),

composed, at the time of the deliberation, of S. Frimodt Nielsen, President, V. Kreuschitz (Rapporteur) and N. Półtorak, Judges,

Registrar: E. Coulon,

gives the following

Judgment

Background to the dispute

1 On 19 December 2017, the applicant, Compañía de Tranvías de la Coruña, SA, requested access to several documents of the European Commission’s Directorate-General (DG) Mobility and Transport pursuant to 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).

2 In the request for access, the applicant referred to the entry into force of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) No 1191/69 and (EEC) No 1107/70 (OJ 2007 L 315, p. 1), and Loi n.º 2009-1503, du 8 décembre 2009, relative à l’organisation et à la régulation des transports ferroviaires et portant diverses dispositions relatives aux transports (French Law No 2009-1503 of 8 December 2009 on the organisation and regulation of rail transport and introducing various provisions relating to transport) (JORF of 9 December 2009, p. 21226). In addition, it explained that it was aware that the Commission had sent the French Republic its opinion on the fact that the metro lines contract is valid until 2039. In that context, it requested access to all existing documents relating to that matter, including any internal correspondence, to all documents relating to that matter whether or not exchanged with the Société nationale des chemins de fer français (SNCF), the Régie autonome des transports parisiens (RATP) or representatives or officials of the French Government, to the Commission’s opinions and to the minutes of meetings or any other document of any kind relating to that matter.

3 By letter of 5 March 2018, the Director-General of DG Mobility and Transport informed the applicant that 27 documents were liable to fall within the scope of the request for access and that, after examining the documents, he had decided, on the basis of Article 4(1)(b) and the second indent of Article 4(2) of Regulation No 1049/2001, to grant partial access to 13 of those 27 documents and to refuse to disclose the other 14 documents. The Commission attached to its letter a list of those 27 documents and the documents in respect of which partial access had been granted.

4 On 19 March 2018, the applicant made a confirmatory application to the Commission pursuant to Article 8 of Regulation No 1049/2001, requesting it to reconsider the position set out in the letter of 5 March 2018. In that application, it disputed the total and partial refusals to disclose the documents at issue in so far as those refusals were justified by the protection of court proceedings in accordance with the second indent of Article 4(2) of Regulation No 1049/2001.

5 By decision of the Secretary General of the Commission of 7 June 2018, adopted on behalf of the Commission pursuant to Article 4 of the Implementing Rules for Regulation No 1049/2001 (C(2018) 3780 final), a response was given to the confirmatory application (‘the contested decision’).

6 In the contested decision, the Commission, pursuant to the second indent of Article 4(2) of Regulation No 1049/2001, first confirmed the refusal to disclose 10 of its documents and 4 documents originating from the French Republic, secondly, confirmed the granting of partial access to 10 of its documents and, thirdly, totally refused access to 3 documents originating from the RATP in respect of which disclosure had been partially authorised. It stated as the reason for that decision the need to protect ongoing court proceedings in the cases that have since given rise to the judgment of 21 March 2019, Mobit and Autolinee Tuscane (C-350/17 and C-351/17, EU:C:2019:237), and, in respect of the latter 3 documents, the order of 12 July 2018, RATP v Commission, (T-250/18 R, not published, EU:T:2018:458), and the order of 12 September 2019, RATP v Commission, (T-250/18, not published, EU:T:2019:615). It considered, in essence, that the content of the undisclosed passages in those documents was closely linked to the legal issues raised in the court proceedings in question. In addition, the Commission examined whether it was possible to grant partial access to the documents requested or whether an overriding public interest could justify their disclosure and concluded that examination by confirming its partial or total refusal to grant access to the documents at issue.

Procedure and forms of order sought

7 By application lodged at the Court Registry on 9 August 2018, the applicant brought the present action.

8 The applicant claims that the Court should:

- annul the contested decision;

- order the Commission to pay the costs.

9 The Commission contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

10 Pursuant to Article 91(c) of the Rules of Procedure of the General Court, the Court, by order of 3 May 2019, requested the Commission to produce all the documents to which access had been partially or totally refused in the contested decision. The Commission produced those documents within the prescribed time limits.

11 In addition, by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure, the Court invited the parties to lodge certain documents and put written questions to the parties. The parties provided those documents and responded to the questions within the prescribed time limits.

12 None of the parties made a request to be heard at a hearing pursuant to Article 106 of the Rules of Procedure. The Court (Third Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.

Law

Preliminary observations

13 At the end of the section of the application setting out each of the pleas in law, the applicant also claims that the Court should order the Commission to disclose to it the documents to which the contested decision totally or partially refused to grant it access.

14 Those claims must be dismissed as inadmissible. It is settled case-law that the Court is not entitled, in the context of a review of legality on the basis of Article 263 TFEU, to issue directions to the institutions or to assume the role assigned to them. That limitation of the scope of judicial review applies to all types of contentious matters that might be brought before the Court (see, to that effect, order of 3 June 2010, Z v Commission, T-173/09, not published, EU:T:2010:221, paragraph 29 and the case-law cited, and judgment of 9 October 2018, Pint v Commission, T-634/17, not published, EU:T:2018:662, paragraph 19).

The first plea in law

Scope of the first plea

15 The applicant submits that the refusal to grant access to the documents which it had requested in the present case could not be justified on the basis of the second indent of Article 4(2) of Regulation No 1049/2001. According to the applicant, the main purpose of the request for access was to determine the commencement date used by the Commission for public service contracts awarded in accordance with EU law and national law where they fell within the scope of the exception provided for in Article 8(3)(b) of Regulation No 1370/2007. The applicant submits that none of the questions referred for a preliminary ruling in the cases that have since given rise to the judgment of 21 March 2019, Mobit and Autolinee Toscane (C-350/17 and C-351/17, EU:C:2019:237), explicitly asked the Court of Justice to interpret or determine the commencement date for public service contracts awarded in accordance with EU law and national law and falling within the scope of that exception. The applicant is not aware of any direct link, required for the application of the second indent of Article 4(2) of Regulation No 1049/2001, between those cases and the information it had initially requested. Moreover, the Commission failed to examine specifically and individually the content of the documents in respect of which access was requested.

16 The applicant concludes that the contested decision does not provide an adequate statement of reasons for linking the request for access to the cases that have since given rise to the judgment of 21 March 2019, Mobit and Autolinee Toscane (C-350/17 and C-351/17, EU:C:2019:237), and justifying the application of the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001. In particular, it submits that, when interpreting whether an institution has given an adequate explanation for its decision, the risk of undermining court proceedings must be reasonably foreseeable and not purely hypothetical. To that end, conclusions should be supported by detailed evidence...