Case T‑344/15

French Republic

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Documents sent under the procedure laid down in Directive 98/34/EC — Documents originating from a Member State — Access granted — Exception for the protection of court proceedings — Exception for the protection of the purpose of inspections, investigations or audits — Prior agreement of the Member State)

Summary — Judgment of the General Court (Third Chamber, Extended Composition), 5 April 2017

1. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from a Member State — Power of the Member State to request the institution not to disclose documents — Scope — Procedural implications — Review by the institution concerned whether the grounds for refusing disclosure put forward by the Member State well founded — Limits

   (European Parliament and Council Regulation No 1049/2001, Arts 4(1) to (3) and (5), and 8)

2. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of court proceedings — Scope — Documents sent by a Member State to the Commission under the procedure laid down by Directive 98/34 — Exclusion — Condition — No foreseeable risk of an infringement action against the Member State concerned

   (Art. 258, first para., TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent; European Parliament and Council Directive 98/34, Art. 8(1))

3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Scope — Application after closure of the procedure under Directive 98/34 to permit a dialogue between the Commission and the Member State concerned — Exclusion

   (European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent; European Parliament and Council Directive 98/34)

1.  Article 4(5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents states that a Member State may request an institution not to disclose a document originating from that Member State without its prior agreement. However, that provision does not confer on the Member State concerned a general and unconditional right of veto, such that it might oppose, in an entirely discretionary manner and without having to give reasons for its decision, the disclosure of any document held by an institution simply because it originates from that Member State. Article 4(5) of Regulation No 1049/2001 entitles the Member State concerned to object to the disclosure of documents originating from it only on the basis of the substantive exceptions laid down in Article 4(1) to (3) and if it gives proper reasons for its position.

   It follows that, before refusing access to a document originating from a Member State, the institution concerned must examine whether that State has based its objection on the substantive exceptions in Article 4(1) to (3) of Regulation No 1049/2001 and has given proper reasons for its position. Therefore, when taking a decision to refuse access, the institution must make sure that those reasons exist and refer to them in its decision refusing access at the end of the procedure. On the other hand, the institution to which a request for access to a document has been made does not have to carry out an exhaustive assessment of the Member State’s decision to object by conducting a review going beyond the verification of the mere existence of reasons referring to the exceptions in Article 4(1) to (3) of Regulation No 1049/2001. In that regard, the review by the institution does not consist in determining whether the reasons given by the Member State concerned are incorrect beyond all possible doubt, but in determining whether, in the light of the circumstances of the case and of the relevant rules of law, the reasons given by the Member State for its objection are capable of justifying prima facie such refusal and, accordingly, whether those reasons make it possible for that institution to assume the responsibility conferred on it under Article 8 of Regulation No 1049/2001. Moreover, it is not a matter, for the institution, of imposing its view or of substituting its own assessment for that of the Member State concerned, but of preventing the adoption of a decision which it does not consider to be defensible. The institution, as author of the decision granting or refusing access, is responsible for the lawfulness of that decision.

   (see paras 30, 36, 38, 41, 43, 46, 47)

2.  The expression ‘court proceedings’, within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents is to be interpreted as meaning that the protection of the public interest precludes the disclosure of the content of documents drawn up solely for the purposes of specific court proceedings. The words ‘documents drawn up solely for the purposes of specific court proceedings’ must be understood to mean the pleadings or other documents lodged, internal documents concerning the investigation of the case, and correspondence concerning the case between the Directorate-General concerned and the Legal Service or a lawyers’ office, the purpose of the definition in that case of the scope of the exception being to ensure, on the one hand, the protection of work done within the Commission and, on the other, confidentiality and the safeguarding of professional privilege for lawyers.

   Notifications by a Member State to the Commission of a draft technical standard pursuant to Article 8(1) of Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations do not constitute such documents, since they are neither pleadings nor documents lodged in the context of court proceedings and, generally, are not drawn up for the purpose of specific court proceedings. As regards the argument that the Member State must consider that, for a certain period, there is a risk of infringement proceedings regarding the text adopted after the conclusion of the procedure provided for by Directive 98/34, especially where the Commission has not adopted a formal decision closing the procedure, commencement of the pre-litigation stage of infringement proceedings is not reasonably foreseeable and remains purely hypothetical where the documents of which disclosure has been requested had not led, more than nine months after the adoption of the technical standard concerned, to the Commission sending a letter of formal notice, pursuant to the first paragraph of Article 258 TFEU.

   (see paras 70-74, 77)

3.  The exception provided for by the third indent of Article 4(2) of Regulation No 1049/2001 is designed to protect not investigations as such, but the purpose of those investigations. That exception applies only if disclosure of the documents in question may endanger the completion of those activities. Certainly, the various acts of investigation or inspection may remain covered by the exception based on the protection of inspections, investigations and audits as long as the investigations or inspections continue, even if the particular investigation or inspection which gave rise to the report to which access is sought has been completed. However, to accept that the various documents relating to inspections, investigations or audits are covered by the said exception until the follow-up action to be taken has been decided would make access to such documents dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of the various authorities. Such an approach would be contrary to the objective of guaranteeing the widest possible public access to documents emanating from the institutions, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers.

   This Court must therefore reject an argument that it is necessary not to disclose documents notified by a Member State to the Commission pursuant to Article 8(1) of Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations, for a certain period after the investigation has closed, namely for so long as there is a reasonably foreseeable possibility of the Member State and the Commission needing a free space for an undisturbed discussion in order to resolve a dispute as to whether a national provision complies with EU law.

   (see paras 83, 85-89)