Action brought on 20 March 2023 — MBDA France v Commission

(Case T-154/23)

(2023/C 179/88)

Language of the case: English

Parties

Applicant: MBDA France (Le Plessis-Robinson, France) (represented by: F. de Bure and A. Delors, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul, on the basis of articles 256 and 263 TFEU, the decision of the Commission of January 10, 2023 rejecting, pursuant to Article 8(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council, (1) the applicant’s confirmatory request for access to documents 2022/5127 — Ares(2023)593134 relating to the Call for Proposals EDF-2021-AIRDEF-D on the protection against high-velocity aerial threats launched by the Commission (‘the EATMI Project’) lodged pursuant to Article 7(2) of Regulation No 1049/2001 (‘the contested decision’), in so far as it refuses to grant the applicant’s full access to the requested documents, with the exception of the redaction of certain personal data, information which could foreseeably actually undermine the protection of public security and of defence and military matters as well as information revealing strategic intentions of the consortium led by the Spanish company Sener Aerospacial Sociedad Anonima (‘the SENER Consortium’) or its members;

—	join this application for annulment with case T-614/22, MBDA France v Commission, pursuant to Article 68 of the Rules of Procedure of the General Court; and

—	order the defendant to pay the applicant’s legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

First plea in law, alleging that the contested decision violates Article 4(1)(a) and (b) of Regulation No 1049/2001. In particular, the applicant considers that:

—	the Commission has failed to demonstrate that the disclosure of the requested documents to MBDA France is likely, specifically and actually, to undermine the protection of public security and of defence and military matters pursuant to Article 4(1)(a) of Regulation No 1049/2001;

—	the contested decision is vitiated by an error of law, as the Commission cannot refuse to disclose the names and functions of the persons involved evaluation committees on the basis of Article 4(1)(b) of Regulation No 1049/2001.

Second plea in law, alleging that the contested decision violates Article 4(2), first and second indents, of Regulation No 1049/2001. In particular, the applicant considers that:

—

the contested decision is vitiated by an error of law in the application of the exemption provided for in Article 4(2), first indent, of Regulation No 1049/2001 as (i) the disclosure of some of the requested documents the disclosure relate to its own proposal in response to the EATMI Project, (ii) it appears also very unlikely that all information contained in the other documents allegedly covered by this exemption is liable to undermine the protection of commercial interests of the members of the SENER Consortium, and, (iii) in any event, the Commission could not refuse to disclose the scores attributed to the SENER Consortium’s proposal;

—

the contested decision is vitiated by an error of law in the application of the exemption provided for in Article 4(2), second indent, of Regulation No 1049/2001, as none of the requested documents contain the Commission’s internal legal position on the legality of the decision which is being appealed in case T-614/22, MBDA France v Commission.

Third plea in law, alleging that the contested decision violates Article 4(3) of Regulation No 1049/2001. In particular, the applicant submits that:

—	the Commission fails to offer any explanation as to the reasons for which the requested documents’ disclosure would specifically and actually seriously undermine the Commission’s decision-making process;

—	the Commission cannot validly base its refusal on the exception provided for in the first subparagraph of Article 4(3) of the Regulation No 1049/2001 insofar as the procedure to which the requested documents relate is already closed.

Fourth plea in law, alleging that the contested decision violates Article 4(6) and Article 1(a) of Regulation No 1049/2001. In particular, the applicant shows that by not assessing whether it could grant partial access to the documents requested, the Commission has violated its obligations to grant partial access when possible and to ensure the widest possible access to documents.

(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).