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It is argued that the decision is based on a number of factually incorrect statements, including the claims that the notified measure constituted a reply to the Commission’s letter of formal notice and that it was intended to show the steps taken by Poland to remedy a breach that was the subject of that letter, i.e. certain conditions on obtaining licenses for providing gambling services in Poland, even though, in reality, the said conditions were removed by Poland over two years ago, and even though the notified measure had nothing to do with the Commission’s letter of formal notice.

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It is argued, in the light of the judgment of the Court of Justice in Case C-331/15 P France v Schlyter, (3) that by applying a general presumption and failing to demonstrate that disclosing the requested documents would specifically and actually undermine the infringement proceedings, the Commission infringed the principle of transparency inherent to Directive 2015/1535.

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It is argued that, because of the duration of the infringement proceedings and its alleged failure to carry out any actual activities in their framework in a reasonable period, the Commission cannot base its refusal on the need to protect the purpose of those proceedings.

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It is argued that the requested documents are not covered by any general presumption. The Commission’s claim that an ‘inextricable link’ between the notification procedure and the infringement proceedings exists is factually incorrect and too vague. In any case it cannot prove that the documents are covered by a general presumption, because that depends solely on them forming part of the infringement file. The correct test of whether a document forms part of that file is whether the Commission acquired its possession in the framework of planned or pending infringement proceedings, i.e. whether it produced, received, commissioned, etc., the document in the framework of such proceedings or with a view to commencing them. This test, it is argued, is not satisfied here.

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The mere fact that the Commission intends to take Malta’s detailed opinion into account and utilise it in its dialogue with Poland in the framework of ongoing infringement proceedings cannot justify a refusal to disclose it.

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It is argued that, given the duration of the infringement proceedings and the content, nature and context of the requested documents, their disclosure cannot in any way undermine the protection of those proceedings, thus rebutting the general presumption of non-disclosure.