Case T‑166/19

Marco Bronckers

European Commission

Judgment of the General Court (First Chamber), 25 November 2020

(Access to documents – Regulation (EC) No 1049/2001 – Agreement between the European Community and the United Mexican States on the mutual recognition and protection of designations for spirit drinks – Documents submitted within the framework of the Joint Committee – Refusal to grant access – Exception relating to the protection of the public interest in respect of international relations – Exception relating to the protection of the commercial interests of a third party)

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)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents emanating from third parties – Requirement for prior consultation of the third parties concerned – Scope – Obligation to uphold third parties’ objection to the disclosure of documents – None– Discretion of the Commission

(European Parliament and Council Regulation No 1049/2001, Art. 4(1), (2) and (4))

(see paragraphs 42-54)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the public interest – International relations – Refusal to disclose documents where there is a reasonably foreseeable and not merely hypothetical risk of harm to the protection of those relations – Admissibility

(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a), third indent)

(see paragraphs 58-64)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the public interest – International relations – Scope

(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a), third indent)

(see paragraphs 69-71)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the public interest – Overriding public interest or a private interest warranting the disclosure of documents – Irrelevant

(European Parliament and Council Regulation No 1049/2001, Art. 4(1))

(see paragraphs 74, 75)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Refusal based on several exceptions – One of the exceptions well founded – Sufficient to justify the refusal decision

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

(see paragraph 78)

Résumé

On 8 May 2018, the applicant requested, under Regulation No 1049/2001, ( 1 ) that the European Commission grant him access to all of the minutes of the meetings of the Joint Committee on Spirit Drinks, set up under the 1997 Agreement concluded by the European Commission and Mexico ( 2 ) and aimed at protecting the geographical indications of products. Having obtained partial access to two sets of minutes, which was granted by the Commission and which the applicant acknowledged receipt of on 3 July 2018, the applicant also asked to be provided with two additional documents from the Mexican authorities presented to the Commission in the course of meetings of the Joint Committee. ( 3 ) The Commission rejected the request for access to those documents on the basis of two exceptions, set out in Article 4 of Regulation No 1049/2001, relating respectively to protecting the public interest as regards international relations ( 4 ) and protecting the commercial interests of a legal person. ( 5 ) On 5 September 2018, the applicant filed a confirmatory request asking the Commission to reconsider its position. By decision of 10 January 2019, the Commission rejected that confirmatory access request.

The General Court dismisses the action brought against that decision of the Commission, ruling, inter alia, that in the present case, the Commission had correctly applied the exception according to which the institutions can refuse access to a document where disclosing it undermined the protection of the public interest as regards international relations. That case, inter alia, allowed the Court to clarify an issue which appears only rarely in the case-law, namely the effects of a third country objecting to access to documents.

Findings of the Court

First of all, the General Court states that, by adopting the contested decision, the Commission did indeed comply with its obligation to state reasons. In that regard, it points out that, in the contested decision, the Commission outlined in a sufficiently detailed manner the matters of fact and of law and all the considerations which led it to adopt that decision.

Next, by specifically analysing how the Commission applied the exception relating to protection of the public interest as regards international relations, the Court, first, recalls that, according to Article 4(4) of Regulation No 1049/2001, in the case of the documents of a third party, the institution is to consult that third party in order to determine whether an exception provided for in paragraphs 1 and 2 of that article applies. Thus, the Commission had to consult the Mexican authorities from whom the documents to which the applicant requested access originated. However, it is still up to the Commission to assess the risks that may result from disclosure of the documents. In that regard, the Court adds in particular that the Commission cannot take the view that opposition by a third country automatically means that disclosure cannot take place on account of a risk to international relations, but must independently analyse all the relevant circumstances and must make a decision using its discretion. Moreover, such a decision is complex and delicate, requiring a special degree of caution, particularly in view of the singularly sensitive and essential nature of the protected interest. The Court observes that, contrary to what the applicant claimed, in the present case the Commission took into account not only the Mexican authorities’ reasoned objection to disclosure of the documents requested, but also their content, the particular context in which it acquired them and the potential negative consequences of their disclosure. It states that the refusal to disclose the documents in question was based mainly on the conclusion of the Commission that such disclosure could be considered by the Mexican authorities as a breach of trust and could lead to a refusal to transmit certain information in future, in particular to the Joint Committee, which would have a negative impact on how that Committee functions and on all future cooperation regarding geographical indications and their protection in the European Union. In that regard, the Commission is not required to rule on the applicability of the exception relating to the protection of the commercial interests of a legal person when examining the applicability of the exception relating to the protection of the public interest as regards international relations, even if the Mexican authorities have objected to disclosure of the documents requested on account of their content.

Secondly, the Court rejects the applicant’s argument that the risk that disclosure of the documents in question could undermine the protection of relations with the international trading partner, namely Mexico, is hypothetical, if not improbable. In that regard, the Court recalls that the Commission is not required to establish the existence of a definite risk of harm to the protection of the European Union’s international relations, but only the existence of a reasonably foreseeable and not merely hypothetical risk. The Court states that the Commission was correct in taking the view that disclosing the documents in question could have a negative impact on the European Union’s relations with the Mexican authorities in the field in question. The existence of that foreseeable risk is sufficient to justify applying the exception relating to the protection of the public interest regarding international relations to all the documents requested.

Finally, the Court points out that, in order for the contested decision to be well founded in law, it is sufficient if one of the exceptions put forward by the Commission in order to refuse access to the requested documents was justified. Since the contested decision was correctly founded on the exception relating to the protection of the public interest regarding international relations, there is no need to rule on the other pleas, in particular concerning the infringement of the exception relating to the protection of the commercial interests of a legal person.

( 1 ) 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).

( 2 ) Agreement between the European Community and the United Mexican States on the mutual recognition and protection of designations for spirit drinks (OJ 1997 L 152, p. 16).

( 3 ) The documents are as follows: ‘Tequila cases found by the Tequila Regulatory Council to be informed to the European Commission [Ares(2018) 4023479]’ and ‘Verification Reports in the European Market (Reportes de Verificación en el Mercado Europeo) [Ares(2018) 4023509)]’.

( 4 ) Article 4(1)(a), third indent, of Regulation No 1049/2001.

( 5 ) Article 4(2) of Regulation No 1049/2001.