Judgments nº T-734/17 of Tribunal General de la Unión Europea, March 26, 2020

• Resolution Date: March 26, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-734/17

(Access to documents - Regulation (EC) No 1049/2001 - Mobile satellite system operator - Documents provided to the Commission by a candidate selected in a call for tenders - Implied and express refusal of access - Exception relating to the protection of the commercial interests of a third party - Overriding public interest - Refusal of partial access)

In Case T-734/17,

ViaSat, Inc., established in Carlsbad, California (United States), represented by J. Ruiz Calzado, L. Marco Perpiñà, P. de Bandt and M. Gherghinaru, lawyers,

applicant,

v

European Commission, represented by S. Delaude and C. Ehrbar, acting as Agents,

defendant,

supported by

Inmarsat Ventures Ltd, established in London (United Kingdom), represented by C. Spontoni, B. Amory, É. Barbier de La Serre, lawyers, and A. Howard, Barrister,

intervener,

APPLICATION under Article 263 TFEU, first, for annulment of the Commission’s implied decision rejecting the applicant’s confirmatory application of 10 July 2017 for access to any information provided by Inmarsat plc, Inmarsat Ventures or its subsidiaries on the occasion of their participation in the European Union call for tenders which led to the adoption of Commission Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS) (OJ 2009 L 149, p. 65) and to any exchange of information in that regard between Inmarsat and the Commission, and, secondly, for annulment of Commission Decision C(2018) 180 final of 11 January 2018 refusing access to that information,

THE GENERAL COURT (Second Chamber),

composed, at the time of deliberation, of E. Buttigieg (Rapporteur), acting as President, B. Berke and M.J. Costeira, Judges,

Registrar: E. Coulon,

gives the following

Judgment

Background to the dispute

1 On 2 May 2017, the applicant, ViaSat, Inc., which is a technology company providing communication solutions for businesses, individuals and governments, submitted, on the basis of Article 7(1) 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), to the European Commission’s Directorate-General (DG) for Communications Networks, Content and Technology a request for access (‘the initial request for access’) to ‘any information submitted by Inmarsat plc, [Inmarsat Ventures Ltd] and/or any of its affiliates, at the occasion of its participation in the EU tender completed on 13 May 2009 by Commission Decision 2009/449/EC on the selection of operators of pan-European systems providing mobile satellite services (MSS) [(OJ 2009 L 149, p. 65)], and [to] any exchange of information between Inmarsat and the [Commission] during the tender following the initial bid and until the final award decision, and [to] any post-award communications’ (‘the documents requested’). Inmarsat, considered by the applicant to be ‘a direct competitor’, is amongst the operator’s selected.

2 By email of 2 May 2017, the DG concerned acknowledged receipt of the initial request for access, which was registered that day under reference GESTDEM No 2017/2592. By letter of 23 May 2017, the DG informed the applicant that, pursuant to Article 7(3) of Regulation No 1049/2001, the time limit for reply had to be extended until 19 June 2017.

3 By letter of 22 June 2017, the DG concerned informed the applicant, first, that it had identified two sets of documents in response to the request at issue, namely ‘Inmarsat’s response to the call for applications for Pan European systems providing [MSS], Volume I (application)’ and ‘Inmarsat’s response to the call for applications for Pan European systems providing [MSS], Volume II (attachments)’, and, secondly, that it refused the request concerned in its entirety on the ground that the disclosure of those documents would undermine the protection of the commercial interests of a natural or legal person, including concerning intellectual property, and the protection of court proceedings and legal advice. Accordingly, the documents requested were, in the DG’s view, covered in their entirety by the exceptions provided for in the first and second indents of Article 4(2) of Regulation No 1049/2001. In the absence of an overriding public interest justifying waiver of those exceptions, it finally refused access, even partial, to the documents in question.

4 On 10 July 2017, the applicant submitted to the Commission, on the basis of Article 8(3) of Regulation No 1049/2001, a confirmatory application for access to the documents requested (‘the confirmatory application for access’). By letter of 1 August 2017, the Secretariat-General of the Commission informed the applicant that, pursuant to Article 8(2) of Regulation No 1049/2001, the time limit for reply had to be extended by 15 working days, that is, to 24 August 2017. By letter of 24 August 2017, which was served on the applicant by email on the same day, the Secretariat-General informed the applicant that it was not able to reply within the extended time limit for reply. It assured that it would do ‘its utmost’ to provide the applicant with a final reply ‘as soon as possible’.

5 In the absence of an express reply to the confirmatory application for access, the applicant brought an action, on 3 November 2017, for the annulment of the implied decision rejecting that application, pursuant to Article 8(3) of Regulation No 1049/2001.

6 On 11 January 2018, the Secretary-General of the Commission adopted an express decision rejecting the confirmatory application for access (‘the contested decision’), which was notified to the applicant on 15 January 2018 and which is the subject of the present action, as modified following the adoption of the contested decision.

7 First, the contested decision identifies an additional document in response to the request for access, namely an ‘e-mail exchange between DG [“Information Society and Media”] and Inmarsat, October/November 2008 (Ares(2017) 439857)’, relating to a request for additional information sent by the Commission to Inmarsat on 24 October 2008 regarding the fulfilment of admissibility requirements made in the call for applications and Inmarsat’s reply of 6 November 2008. Next, it confirms the initial refusal to grant access to the documents requested on the basis of the exceptions set out in the first and second indents of Article 4(2) of Regulation No 1049/2001. The Commission also relies, in the contested decision, on a third exception, relating to the protection of the privacy and integrity of the individual, enshrined in Article 4(1)(b) of Regulation No 1049/2001. Finally, according to the contested decision, there is no overriding public interest justifying disclosure of the documents requested and no meaningful partial access is possible without undermining the protected interests.

Procedure and forms of order sought

8 By application lodged at the Court Registry on 3 November 2017, the applicant brought the present action. By separate document lodged at the Court Registry on 22 January 2018, the Commission brought an application for a declaration that there is no need to adjudicate following the adoption of the contested decision.

9 On 30 January 2018, the applicant informed the General Court of its intention to exercise its right to submit a statement of modification of the application in accordance with Article 86 of the Rules of Procedure of the General Court, so that the present action was thereafter to be regarded as seeking the annulment of the contested decision of 11 January 2018. The statement of modification was lodged at the Court Registry on 22 March 2018.

10 By order of 30 May 2018, the General Court decided to join the examination of the application for a declaration that there is no need to adjudicate on the merits to the ruling on the substance, in accordance with Article 130(7) of the Rules of Procedure.

11 By order of 4 September 2018, Inmarsat Ventures Ltd was granted leave to intervene in support of the form of order sought by the Commission.

12 Following the modification of the application, by document lodged at the Court Registry on 22 March 2018, the applicant claims that the Court should:

- ‘declare that this Modified Application is admissible and replaces the initial Application in this case’;

- annul the contested decision;

- order the Commission to bear, in any event, its own costs and to pay those incurred by the applicant in relation to the application for annulment of the implied decision rejecting the confirmatory application for access;

- order the Commission to bear its own costs and to pay those incurred by the applicant in connection with the application for annulment of the contested decision;

- order the intervener to bear its own costs.

13 The Commission contends that the Court should:

- disregard the references presented in the footnotes in the form of a link to a website;

- declare that the initial action for annulment has become devoid of purpose and that there is no need to adjudicate on it;

- dismiss the modified action for annulment as unfounded;

- order the applicant to pay the costs.

14 The intervener contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs, including those incurred by the intervener.

15 By order of 4 June 2018, the General Court adopted a measure of inquiry, in accordance with Article 91(c) and Article 104 of the Rules of Procedure, in which it ordered the Commission to produce a copy of the following documents: ‘Document 1: the application submitted by Inmarsat in response to the call for applications for Pan European Systems providing MMS, Volume 1 (application); Document 2: the application submitted by Inmarsat in response to the call for applications for Pan European Systems providing MMS, Volume II (annexes); Document 3: email exchange between [DG “Information Society and Media”] and...