Opinion of Advocate General Collins delivered on 18 November 2021.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
ECLIECLI:EU:C:2021:941
Celex Number62020CC0235

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 18 November 2021(1)

Case C235/20 P

ViaSat, Inc.

v

European Commission

(Appeal – Access to documents – Regulation (EC) No 1049/2001 – First indent of Article 4(2) – Exception relating to the protection of the commercial interests of a third party – Mobile satellite system operator – General presumption of confidentiality of documents provided by an operator that was selected in a call for applications to the Commission – Refusal to grant access)






I. Introduction

1. By its appeal, (2) ViaSat, Inc. (‘ViaSat’) seeks to set aside the judgment of the General Court of the European Union of 26 March 2020, ViaSat v Commission (T‑734/17, not published, EU:T:2020:123; ‘the judgment under appeal’), by which the General Court dismissed the application of ViaSat to annul the European Commission’s Decision C(2018) 180 final of 11 January 2018, which upheld the Commission’s initial refusal to grant access to documents that ViaSat had requested (the ‘contested decision’). The decision was grounded on the exceptions set out in the first and second indents of Article 4(2) 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, (3) relating to the protection of commercial interests and court proceedings, as the documents in question consisted of documentation submitted by a successful applicant following a sui generis call for applications.

2. In arriving at its conclusion, the General Court held that the Commission, when refusing access to such documents pursuant to Article 4(2) of Regulation No 1049/2001, could rely on a general presumption of confidentiality in respect of documentation of that kind, namely applications submitted following a sui generis call for applications.

3. Notwithstanding the general obligation of any EU institution refusing to grant access to a document on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001 to explain, in principle, how access to that document could undermine the interest protected by that exception together with an assessment of the associated risk, (4) the Court has acknowledged that EU institutions may, in certain cases, base their decisions on general presumptions. (5) The Court of Justice has not as yet had the opportunity to consider whether such a general presumption may apply to documents submitted by applicants following a call for applications in a selection procedure of that kind.

II. EU legal framework

A. Regulation No 1049/2001

4. Article 4 of Regulation No 1049/2001 entitled ‘Exceptions’, provides in its paragraphs 2, 6 and 7:

‘2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

– commercial interests of a natural or legal person, including intellectual property,

– court proceedings and legal advice,

– the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure.

6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.’

B. Decision No 626/2008

5. By Article 3(3) of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (6) (‘MSS Decision’):

‘3. Access to documents relating to the comparative selection procedure, including applications, shall be granted in accordance with [Regulation No 1049/2001].’

III. Facts and proceedings

A. Background to the dispute and proceedings before the General Court

6. The applicant, ViaSat, is a technology company providing communications solutions for individuals, businesses, and governments. On 2 May 2017, the applicant submitted an application for access to ‘[any] information submitted by Inmarsat PLC, Inmarsat Ventures Limited, 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) (7) and any exchange of information between Inmarsat and the European Commission during the tender following the initial bid and until the final award decision and any post-award communications’ (‘the requested documents’) to the Commission’s Directorate-General for Communications Networks, Content and Technology (‘DG Connect’). That request was made on the basis of Article 7 of Regulation No 1049/2001. According to the applicant, Inmarsat is one of its direct competitors and is amongst the operators that were selected to provide the services tendered for.

7. By letter of 22 June 2017, DG Connect informed the applicant that it had rejected the request for access in its entirety on the grounds that the disclosure of those documents would undermine the protection of the commercial interest of a natural or legal person, including intellectual property, court proceedings and legal advice. In DG Connect’s view, the requested documents were 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 the disclosure of those documents, access – including partial access – was refused.

8. On 10 July 2017, the applicant submitted a confirmatory application for access to documents to the Commission on the basis of Article 8 of Regulation No 1049/2001.

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

10. On 11 January 2018, the Secretary-General of the Commission adopted an express decision rejecting the confirmatory application for access to the documents. In support of that contested decision, the Commission relied on Article 4(2), first indent (protection of commercial interests), of Regulation No 1049/2001, on the second indent of that article (protection of court proceedings and legal advice), and on Article 4(1)(b) (protection of privacy and the integrity of the individual) of that regulation. In that decision, the Commission also identified a document covered by the request that had not previously been identified, namely an ‘e-mail exchange between DG [“Information Society and Media”] (8) and Inmarsat, October/November 2008 (Ares(2017)439857)’, relating to a request for additional information sent by the Commission on 24 October 2008 regarding the admissibility requirements set out in the call for applications and Inmarsat’s reply of 6 November 2008 (‘the email exchange’).

11. 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.

12. On 22 March 2018, the applicant lodged a statement of modification of the application so that the action thereafter sought the annulment of the contested decision.

13. 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.

B. The judgment under appeal

14. In support of its application, ViaSat raised five grounds of annulment in which it alleged that the Commission had infringed, first, the first indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of commercial interests, second, the second indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of court proceedings, third, Article 4(1)(b) of Regulation No 1049/2001 relating to the protection of privacy, fourth, the last clause of Article 4(2) of Regulation No 1049/2001 concerning the existence of an overriding public interest in disclosure, and, fifth, Article 4(6) of Regulation No 1049/2001 concerning the refusal to grant partial access.

15. The General Court held that there was no need to rule on the lawfulness of the Commission’s implied decision and dismissed the remainder of the action.

16. The General Court held that the Commission could invoke a general presumption of confidentiality regarding the requested documents, which related to the tender submitted by Inmarsat. (9) It relied on its case-law (10) according to which, because of the nature of the documents concerned, access to the bids of tenderers regarding public contracts would, in principle, undermine the protection of commercial interests. (11)

17. Contrary to the applicant’s claim, the General Court ruled that this presumption does not apply only with respect to requests for access submitted by an unsuccessful tenderer. In addition to the fact that it would be illogical to grant wider access to third parties than to unsuccessful tenderers, the disclosure of certain information in accordance with Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (12) (‘the Financial Regulation’) has no bearing on the application of a presumption of confidentiality under Regulation No 1049/2001. (13)

18. In the light of the above, the General Court further held that Article 3(3) of the MSS Decision, on which the applicant relied, merely reiterates that any request for access to documents is to be examined by reference to Regulation No...

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