AlzChem Group AG v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2021:628
• Docket Number: T-569/19
• Date: 29 September 2021
• Celex Number: 62019TJ0569
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

29 September 2021 ( *1 )

(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to a procedure for the recovery of State aid following a decision declaring the aid incompatible with the internal market and ordering its recovery – Refusal to grant access – Exception relating to the protection of the purpose of inspections, investigations and audits – Overriding public interest – Principle of non-discrimination – Obligation to state reasons)

In Case T‑569/19,

AlzChem Group AG, established in Trostberg (Germany), represented by A. Borsos and J. Guerrero Pérez, lawyers,

applicant,

v

European Commission, represented by C. Ehrbar and K. Herrmann, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU seeking annulment of Commission Decision C(2019) 5602 final of 22 July 2019 refusing to grant the applicant access to documents relating to the procedure for the recovery of State aid following a decision declaring the aid incompatible with the internal market and ordering its recovery,

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann, President, O. Spineanu-Matei (Rapporteur) and R. Mastroianni, Judges,

Registrar: I. Pollalis, Administrator,

having regard to the written part of the procedure and further to the hearing on 23 March 2021,

gives the following

Judgment

I. Background to the dispute

1 By its Decision (EU) 2015/1826 of 15 October 2014 on the State aid SA.33797 – (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71), the European Commission found, inter alia, that Novácke chemické závody, a.s. (‘NCHZ’), a Slovak chemical company, had received State aid that was unlawful and incompatible with the internal market, in the context of its insolvency proceedings. The Commission decided that that aid had to be repaid by NCHZ and by Fortischem a.s., as economic successor.

2 The applicant, AlzChem Group AG, is a German company which operates in the chemical industry and which intervened as an interested party in the procedure that led to Decision 2015/1826.

3 Decision 2015/1826 was the subject of two actions for partial annulment. By judgment of 24 September 2019, Fortischem v Commission (T‑121/15, EU:T:2019:684), the Court dismissed the action as unfounded. By judgment of 13 December 2018, AlzChem v Commission (T‑284/15, EU:T:2018:950), the Court annulled Article 2 of Decision 2015/1826.

4 By letter of 12 April 2019, the applicant submitted to the Commission a request for access to documents 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). That request concerned the relevant documents held by the Commission, including, inter alia, Excel spreadsheets, Word documents or internal databases containing information on the state of progress of the recovery procedure and the amount of State aid recovered by the Slovak Republic following Decision 2015/1826 (‘the requested documents’).

5 The Commission rejected that request by letter of 24 April 2019, on the ground that it came under the exceptions provided for in the first and third indents of Article 4(2), and Article 4(3) of Regulation No 1049/2001. It also stated that no argument had been put forward that was capable of establishing the existence of an overriding public interest in disclosure of the requested documents and that partial access was not possible.

6 By letter of 15 May 2019, the applicant submitted to the Commission a confirmatory application, pursuant to Article 7(2) of Regulation No 1049/2001. It challenged the Commission’s refusal, arguing, inter alia, that its request did not concern any document covered by the exceptions relied on by the Commission and that there was an overriding public interest justifying disclosure of the requested documents. It also requested partial access to those documents or access to them at the Commission’s premises.

7 On 11 June 2019, the Commission informed the applicant that its confirmatory application was being processed, but that it would not receive a reply within the prescribed period and that the deadline for replying to that request was extended by 15 working days, in accordance with Article 8(2) of Regulation No 1049/2001. On 1 July 2019, the Commission informed the applicant that it had not been possible to gather all the information necessary for the full analysis of its request and for a final decision to be taken, and that that decision would be sent to the applicant as soon as possible.

II. The contested decision

8 By Decision C(2019) 5602 final of 22 July 2019 (‘the contested decision’), the Commission refused to grant the applicant access to the requested documents, taking the view that they came under, first, the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of investigations and, secondly, the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of commercial interests.

9 In the first place, as regards the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, the Commission considered that the requested documents not only formed part of the administrative file relating to the State aid investigation, but also concerned an investigation concerning the implementation of the decision relating to unlawful State aid.

10 First, the Commission observed that, according to case-law, there was a general presumption of confidentiality according to which disclosure of the documents in the administrative file of a State aid procedure undermined the purpose of investigations of such aid, even if the procedure was closed. It considered that the requested documents, which contained information on the state of progress of the State aid recovery procedure in question for which the Slovak authorities were responsible under Decision 2015/1826, formed part of the administrative file in the investigation of that aid, which had not been fully recovered.

11 Secondly, the Commission stated that, during the stage of recovery of unlawful State aid, it verified, with the active cooperation of the Member State concerned, the correct implementation of the decision concerning that aid and, therefore, its actions and the measures taken were intrinsically linked to its investigation of that aid within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. It also stated that the State aid recovery stage was part of a structured and formalised procedure which constituted an investigation within the meaning of that provision. It considered that, since failure to comply with the decision on State aid could lead to the opening of infringement proceedings, the stage of implementation of that decision had to be regarded as a pre-litigation procedure similar to the procedure laid down in Article 258 TFEU, for which the Court of Justice had acknowledged that there was a general presumption of confidentiality. Disclosure of the requested documents to the public could therefore undermine the dialogue with the Slovak Republic, for which a climate of trust was essential.

12 In the second place, as regards the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001, the Commission stated that the case-law had recognised a general presumption of confidentiality in respect of documents forming part of one of its files, irrespective of whether a request for access concerned a closed or pending investigation procedure. According to the Commission, in the present case, the requested documents reveal detailed information on the state of progress and the various stages of the recovery process carried out by the undertakings concerned. In its view, that commercial information is sensitive. In the light of the bilateral nature of the stage of implementation of the decision on unlawful State aid, premature disclosure of documents relating to the state of progress of the undertakings concerned in the recovery process, before the actual recovery of that aid, would harm those undertakings and would ultimately harm the objectives of the State aid procedure rather than contribute to transparency.

13 In the third place, the Commission refused the request for partial access on the ground that there was a general presumption of confidentiality applicable to the requested documents.

14 In the fourth place, the Commission found that the considerations relied on by the applicant in order to establish the existence of an overriding public interest were rather general. In the Commission’s view, the fact that the requested documents related to an administrative investigation and did not concern legislative acts, for which greater transparency had been recognised in the case-law, and the fact that the Commission would publish information on the recovery of the State aid in question after the final completion of the recovery procedure, including the amount repaid, the amount lost and the amount of interest recovered, further supported the conclusion that there was no overriding public interest in the present case.

III. Procedure and forms of order sought

15 By application lodged at the Registry of the General Court on 15 August 2019, the applicant brought the present action.

16 Acting on a proposal from the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral part of the procedure. The parties...