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A look at the Court’s ruling of 14 July 2016 on the applicability of the general presumption of confidentiality - and the notion of overriding public interest - applicable to documents relating to procedures for reviewing State aid.
This short note examines the case C-271/15 P, Sea/Commission, an appeal brought by Sea Handling S.p.A. (Sea Handling) against the ruling of the Tribunal in case T-456/13. The latter case was activated by the Sea Handling itself against the Commission’s decision of 12 June 2013 that had denied the applicant access to documents relating to a procedure of State aid control on capital increases made in favour of Sea Handling by Sea S.p.A., its parent company.
The request for access to such documents had been submitted by Sea Handling pursuant to Article 6 of Regulation no. 1049/2001 (hereinafter, the Regulation), which defines the principles, conditions and limits governing the right of access provided by Article 15 (3) TFEU. The Treaty guarantees to any person residing in a Member State the “right of access to documents of the Union institutions, bodies, offices and agencies”.
The denial of access in the contested decision was based on the exceptions referred to in Article 4, paragraph 2, first and third indent, of the Regulation. According to these provisions, access to the information requested may be refused where it “would undermine the protection», respectively, of «commercial interests of a natural or legal person, including intellectual property», or «the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure».
Sea Handling had contested the Commission’s decision before the Tribunal on five grounds, all dismissed in their entirety by the judgment of 25 March 2015. On appeal, Sea Handling argued likewise five grounds of appeal, which were, however, also rejected by the Court.
With the first part of the first plea, Sea Handling had questioned the applicability to its request of the general presumption of confidentiality recognised by the Court of Justice of the European Union in favour of documents relating to procedures for reviewing State aids [see Judgment of 29 June 2010, C-139/07, Commission/Technische Glaswerke Ilmenau].
The Court has however considered that the ruling of the judge of first instance was correct. Further evidence did not emerge in this case in order to rebut that presumption, nor Sea Handling had demonstrated an overriding interest to their disclosure [p. 40]. The Court has also added that, in accordance with its case-law, the general presumption previously referred applies both when the party is seeking access to the entire file, and where access to individual documents is requested [p. 41].
In line with this reasoning, the Court has thus rejected the second part of the first ground of appeal. Sea Handling had criticised the judgment of the Tribunal on the grounds that, in its opinion, the Court had not sufficiently explained its decision to consider lawful the extension of the general presumption of confidentiality to specifically identified documents.
The Court, in dismissing the claims of Sea Handling, has made it clear that the mere fact that the request for access has precisely identified, or not, that the document(s) has no effect on the applicability, or not, of the general presumption of confidentiality. The Court has explained that this element has no effect on the underlying rationale of the exception provided for in the Regulation, which is to guarantee the outcome of the administrative proceeding [p. 54].
With the second ground of appeal, Sea Handling had instead claimed the breach of Article 4, paragraph 6, of the Regulation and the principle of proportionality, since, in its opinion, the Tribunal had failed to examine whether the Commission had good reasons for not disclosing any part of the requested specific documents.
The Court has rejected however also this claim referring to its previous Judgment of 28 June 2012 [Commission/Éditions Odile Jacob, C-404/10] in which it had clarified, in relation to the right to partial access to documents, that the general presumption involves that “the documents covered by them do not fall within an obligation of disclosure, in full or in part, of their content” [C-404/10, p. 133].
With the third ground of appeal, Sea Handling had claimed that the Tribunal had failed to assess the actual grounds upon which the refusal of access was based.
The Court has rejected this plea by stating that, subsisting the general presumption of confidentiality, the Tribunal is only required to check whether the Commission could legitimately consider that the documents covered by the request of access are part of a State Aid proceeding [p. 68]. Consequently, the Court has concluded that the Tribunal had correctly merely verified that, in this case, it was undisputed that the documents requested by Sea Handling fell within the investigative phase of a State aid review.
The first part of the fourth plea concerned the alleged violation of Article 7, paragraphs 1 and 3, of the Regulation. Sea Handling claimed that the Commission, within the administrative procedure set forth by the Regulation, had prevented the applicant from producing the evidence needed to overturn the general presumption of confidentiality.
On this matter the Court has remembered that a response to a request within the meaning of Article 7 is only an initial statement, thus as such non-actionable before the Court [p. 76]. It follows that, according to the Court, the finding of Tribunal is correct where it states that, in case of breach of the terms of Article 7, paragraphs 1 and 3, or in the event of silence, it is always possible to file an application for confirmation [p. 77].
The Court has also rejected the second part of the fourth plea, with which Sea Handling held that the Tribunal had wrongly interpreted Article 8 of the Regulation. Sea Handling held that the Tribunal should have had considered the fact that the Commission had not respected the deadlines set forth therein. The Court has however noted that at the expiry of that period, in the absence of the Commission’s response, Article 8 provides that the silence must be interpreted as an implicit decision to reject the request for access [p. 83].
With the fifth and final ground of appeal, Sea Handling criticised the ruling of first instance as it had not properly evaluated the existence of an “overriding public interest” as concerns the access, in accordance with Article 4, paragraph 2 of the Regulation. Sea Handling argued that such interest derived from the principles of transparency and good administration.
On this point, the Court nevertheless held that in this case there was no “overriding public interest” as the interest claimed by Sea Handling was merely due to the preparation of an action against a Commission decision and, as such, it could not be classified as “public” [p. 97]. The Court recalled that, in accordance with its previous case-law, a substantial interest deriving from a damage suffered by a private company as part of a merger does not constitute an overriding public interest [p. 98]. Consequently, the Court stressed that the interest evoked by Sea Handling constitutes a “private interest” which falls outside the scope of Article 4, paragraph 2, of the Regulation [p. 99].
Gherardo Carullo, ‘Right of access and State Aid procedures: the general presumption of confidentiality and the overriding public interest in case C-271/15 Sea / Commission’ (State Aid Hub Blog, 10/19/2016) <http://stateaidhub.eu/blogs/stateaid/post/7327>
[Photo credit: JosephdePalma from flickr.com]