(Case T‑524/21)

Hans-Wilhelm Saure

v

European Commission

Judgment of the General Court (Eighth Chamber), 12 October 2022

(Access to documents – Regulation (EC) No 1049/2001 – Commission correspondence with AstraZeneca and the German authorities concerning the quantity of COVID-19 vaccines and their delivery times – Exception relating to the protection of court proceedings – Documents having been produced in the context of court proceedings that were closed at the time of adoption of the decision refusing access to those documents – Exception relating to the protection of privacy and the integrity of the individual – Exception relating to the protection of commercial interests of a third party)

1. 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 not drawn up solely for the purposes of court proceedings, but capable of undermining the defensive capacity of the institution concerned in those proceedings – Included – Conditions

   (European Parliament and Council Regulation No 1049/2001, Arts 3(a), 4(2), second indent, and 4(7))

   (see paragraphs 34, 35, 43)

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 – Compliance with the principle of equality of arms – Principle of sound administration of justice and integrity of court proceedings

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

   (see paragraphs 36-38)

3. 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 drawn up or produced in the course of specific court proceedings before a court of the European Union, of a Member State, of an International Organisation or of a third State – Included – Conditions – Assessment in the light of the content of the document

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

   (see paragraphs 42-45)

4. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of court proceedings – Written pleadings submitted by the Commission – Applicability of the exception after the conclusion of the proceedings by a judicial decision

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

   (see paragraph 49)

5. EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of court proceedings – Connection with the protection of trade secrets after the court proceedings have ended – Duty of sincere cooperation with the judicial authorities of Member States – Conditions

   (European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent; European Parliament and Council Directive 2016/943, recital 11 and Art. 9(1))

   (see paragraphs 55-67)

Résumé

The applicant, Mr Hans-Wilhelm Saure, is a journalist employed by the German daily newspaper Bild. At the beginning of 2021, he submitted an application for access ( 1 ) to copies of all the correspondence exchanged since 1 April 2020 between the Commission and, first, the company AstraZeneca plc or its subsidiaries and, second, the German federal authorities, relating to, inter alia, the quantities of COVID-19 vaccines and the delivery times offered by that company.

The Commission, initially, identified a number of documents to which access had to be refused on the basis of the protection of court proceedings, ( 2 ) given that proceedings between the European Union and AstraZeneca were pending before the Tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium). Following the closure of those proceedings after an agreement had been reached between the parties, the Commission, after re-examining the applicant’s request, adopted a second decision replacing the first. In that new decision, the Commission stated that the exception relating to the protection of court proceedings applied wholly or partially to a number of documents covered by the applicant’s request for access. Furthermore, it refused access to certain documents on the basis of the protection of privacy and the integrity of the individual, the protection of commercial interests ( 3 ) and the general presumption of confidentiality by virtue of that exception.

Hearing an action for annulment against, inter alia, the second Commission decision, the General Court rules on the application of the exception relating to the protection of court proceedings and, in particular, on the duty of sincere cooperation with the judicial authorities of the Member States. It concludes that the application of that exception in the present case is unlawful and, consequently, that the second decision must be annulled in part.

Findings of the Court

As a preliminary point, the Court notes that the application of the exception relating to the protection of court proceedings precludes the disclosure of documents only for as long as, having regard to their content, the risk of undermining court proceedings persists. That protection is accounted for by the need to ensure, first, respect for the principle of equality of arms, in particular in order to ensure that criticism of the position of an institution in a dispute, contained in a disclosed document, is not liable unduly to influence that position and, second, the sound administration of justice and the integrity of court proceedings, in order to ensure that, throughout those proceedings, the exchanges of argument between the parties and the deliberations of the court concerned in the case take place in an entirely calm atmosphere, without external pressure on judicial activities.

In the present case, first, the Court finds that, on the date on which the second decision was adopted, the court proceedings capable of justifying the application of the exception relating to the protection of court proceedings were closed. It recalls that it is true that a document which was not drawn up in the context of specific court proceedings may be protected if, on the date on which the reply is made to that request for access, it has been produced in court proceedings. However, the legislature did not exclude the institution’s litigious activities from the public’s right of access and such a document is capable of being protected solely on the basis of its content.

Second, in order to assess whether the exception relating to the protection of court proceedings could no longer justify the refusal of access at issue after the closure of the judicial proceedings before the Tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)), the Court examines whether, in the light of the content of the documents in question, the Commission has demonstrated that their disclosure would continue to undermine those proceedings. The Court finds that the Commission has failed to explain how that access could specifically and actually continue to undermine court proceedings.

Similarly, regarding the need to ensure respect for the integrity of court proceedings, it states that the exchanges of argument between the parties and the deliberations were able to take place in an entirely calm atmosphere, without any external pressure on judicial activities. Furthermore, it does not find that any other court proceedings were pending, or even imminent, at the time of adoption of the second contested decision in which arguments developed in the context of the proceedings which had been closed could have been used in support of the legal position defended by the institution.

Third, the Court rejects the Commission’s argument that, by reason of the principle of sincere cooperation with the national court before which the matter had been brought, it was required to refuse access to those documents in order to comply with the requirements of the Code judiciaire belge (Belgian Judicial Code). ( 4 )Under those requirements, a party to court proceedings is not authorised to disclose a business secret or alleged business secret of which it has become aware as a result of its participation in the proceedings, even after those proceedings have concluded, where the court has decided that such a secret should remain confidential.

First of all, the Court notes that those requirements follow from provisions transposing the directive on the protection of undisclosed know-how and business information against their unlawful acquisition, use and disclosure. ( 5 )It is apparent from that directive that the Commission cannot rely on a provision of national law transposing that directive in order to frustrate its obligations concerning access to documents.

Next, on the one hand, the Court finds that the documents at issue were in the Commission’s possession before those proceedings began. On the other hand, the national court before which the matter was brought had not adopted any decision pursuant to the abovementioned provisions of the Belgian Judicial Code. It is the parties themselves which concluded an agreement under which certain documents produced in the course of those proceedings would remain confidential. In those circumstances, the Commission cannot, by means of a mere agreement concluded with a third-party company, restrict the right of an EU citizen to secure access to documents in its possession and thus circumvent its obligation, subject to certain exceptions, to provide access to those documents. Nor, in that context, can it rely on its duty of sincere cooperation with the judicial authorities of the Member States in order to justify the refusal to grant access to those documents.

Finally, the Court notes that the purpose of the provisions of the Belgian Judicial Code in question, in so far as they are designed to protect business secrets, differs from that pursued by provisions seeking to ensure compliance with the principles of equality of arms and the sound administration of justice and integrity of court proceedings. Thus, the mere fact that the documents at issue contain business secrets does not make it possible to explain how access to those documents could specifically and actually continue to undermine the court proceedings which had been closed at the time when the second contested decision was adopted.

( 1 ) In accordance with 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 ) Exception provided for in the second indent of Article 4(2) of Regulation No 1049/2021.

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

( 4 ) Article 871bis of the Belgian Judicial Code.

( 5 ) Article 9(1) of Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ 2016 L 157, p. 1).