Case T‑689/21

Margrete Auken
and
Tilly Metz
and
Jutta Paulus
and
Emilie Mosnier, as heir of Michèle Rivasi
and
Kimberly van Sparrentak

v

European Commission

Judgment of the General Court (Fifth Chamber) of 17 July 2024

(Access to documents – Regulation (EC) No 1049/2001 – Advance purchase agreements and purchase agreements concluded between the Commission and pharmaceutical companies for the purchase of COVID-19 vaccines – Partial refusal of access – Exception relating to the protection of the commercial interests of a third party – Obligation to state reasons – Existence of a foreseeable and not purely hypothetical risk of the interest relied on being undermined – Principle of good administration – Freedom of expression)

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

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

   (see paragraphs 30, 31, 34-36, 42, 45, 68, 77-79, 81-83, 86, 87, 106, 107, 109, 111, 118, 119, 142, 143, 147-149, 160, 161, 165, 166, 168, 169, 176, 177, 183, 186, 200, 202, 210, 217)

2. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of commercial interests – Scope – Information on the location of the COVID-19 vaccine production sites – Included – Publication of an interactive map showing the production capacities of COVID-19 vaccines in the European Union – Irrelevant

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

   (see paragraphs 33, 59-61, 63-65, 67)

3. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of commercial interests – Scope – Refusal to disclose certain definitions and to disclose provisions on indemnification, donations and resales in the purchase agreements for COVID-19 vaccines – Not permissible

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

   (see paragraphs 46, 156-170, 187)

4. Action for annulment – Review of legality – Criteria – Taking into account of only the facts and the information that was available when the act at issue was adopted

   (Art. 263 TFEU)

   (see paragraphs 56, 117)

5. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of commercial interests – Scope – Public funds – Provisions on down payments and advance payments – Included – Unauthorised disclosure of information on the prices of the vaccines – Irrelevant

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

   (see paragraphs 112-115, 118)

6. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of commercial interests – Scope – Interest in avoiding actions for damages – Precluded

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

   (see paragraph 159)

7. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of commercial interests – Scope – Possible damage to the reputation of an undertaking – Included

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

   (see paragraph 167)

8. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of commercial interests – Overriding public interest justifying the disclosure of documents – Invocation of the principle of transparency – Need to put forward particular considerations in relation to the case

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

   (see paragraphs 212-214, 220-223, 229, 230)

9. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of commercial interests – Scope – Purchase agreements for COVID-19 vaccines – No overriding public interest justifying the disclosure of documents – Time-limited application of the exception

   (European Parliament and Council Regulation No 1049/2001, Art. 4(2) and (7))

   (see paragraph 231)

Résumé

In this judgment, the General Court upholds, in part, the action for annulment brought by several Members of the European Parliament (MEPs) against the decision of the European Commission granting only partial access to the advance purchase agreements and purchase agreements for COVID-19 vaccines. ( 1 )

At the beginning of 2021, six MEPs requested access ( 2 ) to the different agreements concluded between the Commission and pharmaceutical companies for the purchase of COVID-19 vaccines, including the agreements that might have been concluded after the date of the request for access (‘the initial request’). The Commission granted partial access to nine documents, stating that the redacted versions of those documents had been made public on the Commission’s website and that the passages had been redacted on the basis of the exceptions relating to the protection of privacy and the integrity of the individual, the protection of commercial interests and the protection of the decision-making process of the institutions. ( 3 )

Subsequently, those MEPs made a confirmatory application seeking full disclosure of the nine identified documents, except for the passages covered by the protection of privacy and the integrity of the individual (‘the confirmatory application’).

In the contested decision, the Commission stated that, following a re-examination of the response to the initial request, thirteen documents had been identified as falling within the scope of the request for access to documents (together, ‘the agreements at issue’). It granted wider access to the nine documents which had been identified initially and partial access to the other four documents which, until that point, had not been publicly disclosed. The Commission relied on the exception relating to the protection of privacy and the integrity of the individual and the exception relating to the protection of the commercial interests of the undertakings concerned in order to justify granting only partial access to the agreements at issue.

Findings of the Court

In the first place, the Court upholds, in part, the plea alleging that the Commission misapplied the exception relating to the protection of the commercial interests of the undertakings concerned in so far as that plea refers to the redaction of the definitions of the expressions ‘wilful misconduct’ and ‘best reasonable efforts’ in three of the agreements at issue. In that regard, the Court observes that a mere reading of the agreements at issue shows that, although certain definitions are identical, others were the subject of individual and specific negotiations. Therefore, their specific wording cannot be regarded, in all cases, as being general and standard.

The Court finds, next, that the contested decision does not expressly indicate, even briefly, the reasons why the definitions of the expressions referred to were redacted. Even though the Commission provided explanations in its pleadings and at the hearing, they were not relied on in the contested decision and cannot be inferred from that decision. The Courts of the European Union are not required to take into account additional explanations provided by the author of the measure in question only during the proceedings in order to assess whether the obligation to state reasons has been satisfied.

Thus, the Court concludes that the grounds of the contested decision do not enable the applicants to understand the specific reasons which led to those redactions or the Courts of the European Union to review the legality of those redactions. By failing to provide sufficient explanations as to how access to those definitions could specifically and actually undermine the commercial interests of the undertakings in question, the Commission infringed the first indent of Article 4(2) of Regulation No 1049/2001.

In the second place, the Court upholds, in part, the plea criticising the way in which the Commission applied the exception relating to the protection of commercial interests in order to redact certain information from the agreements at issue.

The Court rejects as ineffective the applicants’ line of argument that disclosure of information on the location of the production sites and subcontractors of the undertakings concerned would not be capable of undermining the undertakings’ current commercial interests. In that regard, it points out that the assessment of the justification for applying one of the exceptions provided for in Article 4 of Regulation No 1049/2001 must be made in the light of the available information and the facts existing on the date of adoption of the decision refusing to grant access. Furthermore, it states that the Commission was right to find that the redacted information fell within the scope of the commercial relations and of the industrial and business strategy of the undertakings concerned.

As regards the provisions on intellectual property rights and the provisions on down payments or advance payments, contractual liability, and delivery schedules, the Court concludes that the explanations provided by the Commission in the contested decision concerning the existence of a reasonably foreseeable and not purely hypothetical risk of the protection of the commercial interests of the undertakings concerned being undermined, as regards the full disclosure of those provisions, are well founded.

By contrast, the Court does not endorse the Commission’s position regarding the refusal to grant wider access to the provisions on indemnification. In that context, it observes, first, that the mechanism whereby the Member States indemnify the undertakings concerned, set out in the agreements at issue, does not in any way affect the regime of legal liability of those undertakings under Directive 85/374. ( 4 ) According to that directive, a producer is liable for damage caused by a defect in its product and its liability to the injured person may not be limited or excluded by a provision limiting its liability or exempting it from liability. Second, it observes that the information on the indemnification mechanism was already in the public domain at the time when the initial request for access was made and when the contested decision was adopted. ( 5 )

The Court finds that, although the agreements at issue all contain a provision on indemnification, the detailed content of those provisions is not identical.

Nevertheless, the Court finds that the three grounds relied on by the Commission to refuse wider access to those provisions do not demonstrate the existence of a foreseeable and not purely hypothetical risk to the commercial interests of the undertakings concerned.

First, as regards the ground that precise knowledge of the limits of the liability of the undertaking concerned could expose it to multiple actions for damages, the Court notes that the right of third parties who may have been harmed by a defective vaccine to bring actions for damages is based on the national legislation transposing Directive 85/374. It is therefore independent of the existence and content of the provisions on indemnification. Furthermore, the interest of the undertakings concerned in avoiding such actions for damages and the costs associated with those proceedings cannot be regarded as a commercial interest and does not constitute an interest deserving of protection under Regulation No 1049/2001. Moreover, there is nothing in the contested decision to support the conclusion that the wider disclosure of those provisions could give rise to such actions.

Second, as regards the ground that full disclosure would inevitably reveal to the competitors of the undertaking concerned the ‘weak points’ of the coverage of its liability, giving them a competitive advantage which they could exploit, for example, in advertisements, the Court notes that the reason why those provisions were incorporated into the agreements at issue, namely to compensate for the risks associated with the shortening of the period for the development of vaccines, was in the public domain before the contested decision was adopted. Moreover, all the undertakings concerned obtained a provision on indemnification.

Third, the Court rejects, for the same reasons, the ground that full disclosure would have repercussions for the reputations of the undertakings concerned.

Similarly, the Court upholds the applicants’ line of argument concerning the redaction of the provisions on donations and resales. It observes that the contested decision does not expressly indicate, even briefly, the reasons for those redactions. By failing to provide sufficient explanations as to how access to those provisions could specifically and actually undermine the commercial interests of the undertakings, the Commission infringed the first indent of Article 4(2) of Regulation No 1049/2001.

In the third place, the Court rejects the applicants’ plea by which they complain that the Commission redacted, in an inconsistent manner, from some of the agreements at issue, certain provisions and information which are of the same, or even identical, nature. The Court states that, in the case of documents originating from a third party, although it is true that it is mandatory to consult that party, it is for the Commission to assess the risks that may result from disclosure of those documents. In the present case, each agreement constituted an independent document and the applicants adduced no evidence capable of refuting the Commission’s explanations, in the contested decision, to the effect that it had relied on an analysis of the specific content of each agreement in question and on an analysis of the individual situation of each undertaking concerned.

Lastly, the Court rejects the applicants’ plea alleging that the Commission failed to take into account the overriding public interest in disclosure of the requested information. The Court states that considerations as general as those relied on by the applicants, namely the need to establish public trust in the Commission’s actions concerning the purchase of COVID-19 vaccines and in the vaccines themselves, cannot establish that the interest in transparency was of particularly pressing concern and capable of prevailing over the reasons justifying the refusal to disclose the redacted parts of the agreements at issue. It also points out that the agreements at issue form part of an administrative, not legislative, activity.

( 1 ) Decision C(2022) 1038 final of the European Commission of 15 February 2022 (‘the contested decision’).

( 2 ) Under 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 ) Exceptions provided for in, respectively, Article 4(1)(b), the first indent of Article 4(2), and the first subparagraph of Article 4(3) of Regulation No 1049/2001.

( 4 ) According to Articles 1 and 12 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29).

( 5 ) See, in particular, the third paragraph of Article 6 of the agreement of 16 June 2020 on the procurement of COVID-19 vaccines concluded between the Commission and the Member States, and the Commission Communication of 17 June 2020 entitled ‘EU Strategy for COVID-19 vaccines’ (COM(2020) 245 final).