Case T‑646/18

Laurence Bonnafous

v

European Commission

Judgment of the Court (First Chamber), 26 March 2020

(Access to documents – Regulation (EC) No 1049/2001 – Audit report on human resources in the EACEA – Refusal to grant access – Exception relating to the protection of the purpose of inspections, investigations and audits)

1. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Obligation to state reasons – Scope

   (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); European Parliament and Council Regulation No 1049/2001, Art. 4)

   (see paragraphs 22-25, 31, 35)

2. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Requirement that the institution should examine the documents specifically and individually – Scope – Exclusion from the obligation – Conditions

   (European Parliament and Council Regulation No 1049/2001, Art. 4(2))

   (see paragraphs 60, 61, 82, 83)

3. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Regulation No 966/2012 – Protection of the purpose of inspections, investigations and audits – Application to the findings and reports of the internal auditor – General presumption that the exception to the right of access to documents relating to an internal audit applies – Whether permissible – Limits

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

   (see paragraphs 68-77)

4. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Overriding public interest justifying the disclosure of documents – Requirement that the institution should weigh the opposing interests – Subjective interest of the person concerned in defending himself or herself – Not included

   (European Parliament and Council Regulation No 1049/2001, Art. 4(2) and (3))

   (see paragraph 89)

Résumé

In the judgment in Bonnafous v Commission (T‑646/18), delivered on 26 March 2020, the Court dismissed the applicant’s action for annulment of the European Commission’s decision of 9 October 2018, ( 1 ) which, pursuant to Regulation No 1049/2001, ( 2 ) had refused to grant the applicant access to the final 2018 audit report on human resources in the Education, Audiovisual and Culture Executive Agency (EACEA), dated 21 January 2018. This case gave the Court the opportunity to clarify certain aspects of the exception concerning the protection of the purpose of inspections, investigations and audits within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. ( 3 )

On 30 July 2018, the applicant, Ms Laurence Bonnafous, a former member of the contract staff at the EACEA, sent an email to the European Commission’s internal audit service, requesting access, pursuant to Regulation No 1049/2001, to the final audit report requested. On 9 October 2018, the Commission adopted the contested decision, by which it rejected the applicant’s confirmatory application for access to the document. The Commission found, in essence, first, that the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001, when interpreted in the light of the financial regulation, ( 4 ) precluded the premature disclosure of an audit report which risked jeopardising the serenity and independence of the audit in question by hindering the implementation, by the EACEA, of the recommendations contained within it and, secondly, that there was no overriding public interest to justify the non-application of that exception.

By her action for annulment of that Commission decision, the applicant disputes, in particular, the application of the exception under the third indent of Article 4(2) of Regulation No 1049/2001, and its interpretation in the light of the financial regulation, to the requested document, on the ground that the audit in the context of which the document was prepared had been completed by the time she requested access to the document. According to the applicant, it would be contrary to both the objective of Regulation No 1049/2001 and to the principle of transparency ( 5 ) to wait for the recommendations set out in a final audit report to be implemented before the documents relating thereto could be disclosed without fear of hindering the purpose of that audit.

The Court rejected the applicant’s arguments in that regard. After noting that Article 99(6) of the financial regulation provides that ‘the reports and findings of the internal auditor … shall be accessible to the public only after validation by the internal auditor of the action taken for their implementation’, the Court stated that Regulation No 1049/2001 and the financial regulation have different objectives. Regulation No 1049/2001 is designed to facilitate as far as possible the exercise of the right of access to documents and to promote good administrative practices. The financial regulation, for its part, is designed to define the financial rules applicable to the general budget of the European Union. At the same time, the Court pointed out that Regulation No 1049/2001 and the financial regulation do not contain any provision expressly giving one regulation primacy over the other. It follows from settled case-law that it cannot be excluded, as a matter of principle, that the exceptions under Article 4(2) of Regulation No 1049/2001 may be interpreted in the light of certain specific rules of EU law. In such a case, it is appropriate to ensure that each of those regulations is applied in a manner which is compatible with the other and which enables a coherent application of them.

The Court noted that the very purpose of Article 99(6) of the financial regulation is to restrict access to the reports and findings of the internal auditor, by safeguarding those documents from public disclosure until the internal auditor has validated the action taken for their implementation. In those circumstances, to permit general access, on the basis of Regulation No 1049/2001, to the reports of the internal auditor where the latter has not yet validated the action taken for their implementation would be likely to jeopardise the balance which the EU legislature sought to achieve in the financial regulation between the right of the public to access the documents of the institutions as widely as possible and the ability for the internal auditor to conduct audits properly.

Therefore, according to the Court, for the purposes of interpreting the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001, it is necessary to apply a general presumption that disclosing the reports and findings of an internal auditor before he or she has validated the action taken for their implementation would undermine the purpose of the audits he or she carries out, although that presumption of harm does not rule out the possibility of the parties concerned demonstrating that a specific document disclosure of which has been requested is not covered by that presumption.

In any event, the Court noted that the fact that internal audit documents are covered by the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001, for as long as the action for implementing the audit in question remains to be validated by the internal auditor, restricts the fundamental right of the public to access the documents only in two limited respects. First, out of inspections, investigations and audits, that interpretation relates only to the specific category of audits carried out by the internal auditor. Secondly, the interpretation is limited in time, since it permits the EU institutions to refuse access to the reports and findings of those internal audits only until the internal auditor has validated the action taken for their implementation.

( 1 ) Decision C(2018) 6753 final of the Commission of 19 October 2018 (Commission decision concerning confirmatory application for access to documents GESTDEM 2018/4141).

( 2 ) 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).

( 3 ) Under this provision, the institutions are to refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.

( 4 ) Article 99(6) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) (‘the financial regulation’).

( 5 ) The principle of transparency is recognised by Article 15 TFEU and Article 42 of the Charter of Fundamental Rights of the European Union.