International Management Group v Commission (Judgment) [2016] EUECJ T-110/15 (26 May 2016)

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(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to an OLAF investigation — Access refused — Exception concerning the protection of the purpose of inspections, investigations and audits — Obligation to carry out a specific and individual examination — Category of documents)

International Management Group, established in Brussels (Belgium), represented initially by M. Burgstaller, Solicitor, and E. Wright, Barrister, and subsequently by A. Tymen and L. Levi, lawyers,

European Commission, represented by J. Baquero Cruz and S. Bartelt, acting as Agents,

ACTION pursuant to Article 263 TFEU for annulment of Decision THOR/C4/LL/el/(S) (2015) 4287 of the European Anti-Fraud Office (OLAF) of 6 February 2015 refusing to grant the applicant access to documents relating to the investigation concerning it,

composed of D. Gratsias, President, M. Kancheva and C. Wetter (Rapporteur), Judges,

1 On 17 June 2014, the applicant, International Management Group, was informed that the European Anti-Fraud Office (OLAF) was investigating ‘possible irregularities in attributing EU-funds [in its favour] linked to [its] legal nature … in connection inter alia with the application of Article 53(1)(c) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities [(OJ 2002 L 248, p. 1)]’.

2 In the context of the OLAF investigation, at the stage of the summary of the facts referred to in Article 9(4) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by [OLAF] and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1), an interview took place between OLAF and a representative of the applicant, followed by exchanges of correspondence and a request for access to certain documents listed in that summary of the facts, access which OLAF refused on the basis of the abovementioned regulation.

3 On 30 October 2014, by virtue of Article 2(1) of 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), the applicant requested access to the following documents:

(b) all other documents and information held by OLAF concerning [the applicant];

(c) all correspondence referred to or relating to the “Summary of facts” contained in the Annex to [OLAF’s] letter of 6 October 2014;

(d) all correspondence between OLAF and the Member States involved in the inquiry;

(e) all documents, reports and information relating to the inquiry provided to the Member States and vice versa, including:

(i) alleged “official statements from the authorities (including the Ministries of Foreign Affairs) of certain States” (see point 22 of [OLAF’s) document called “Summary of the facts”);

(ii) alleged “information received from the United Nations and [DG] ECHO” (see points 23 to 25 of [OLAF’s] document called “Summary of the facts”);

(f) all documents, reports and information relating to the inquiry provided to the EU institutions, bodies, offices, agencies and non-EU Member State authorities during the period 2008-2014.’

4 On 27 November 2014, OLAF refused to grant the applicant access to all the documents requested on the ground that their disclosure would undermine the protection granted to the purpose of inspections, investigations and audits, provided for in the third indent of Article 4(2) of Regulation No 1049/2001.

5 On 11 December 2014, the applicant sent a confirmatory application for access to the documents requested (‘the confirmatory application’), pursuant to Article 7(2) of Regulation No 1049/2001.

6 The OLAF investigation under reference OF/2011/1002 covering the documents referred to in paragraph 3 above, which appear in the applicant’s initial application under points (a) and (c) to (f), was closed on 12 December 2014 and the final report was submitted to the European Commission by OLAF on 15 December 2014.

7 On 6 February 2015, OLAF adopted Decision THOR/C4/LL/el/(S) (2015) 4287 rejecting the confirmatory application (‘the contested decision’), stating that the documents requested were part of either an ongoing investigation or one which was closed, but in respect of which a reasonable period of time within which the EU authorities are required to conduct a follow-up had not yet elapsed, with the result that their disclosure could undermine the protection of the purpose of those investigations.

8 By application lodged at the Court Registry on 2 March 2015, the applicant brought the present action.

9 By means of a separate document lodged on the same day, the applicant requested that the action be decided under an expedited procedure, in accordance with Article 76a of the Rules of Procedure of the General Court of 2 May 1991.

11 By decision of 5 May 2015, the Court (Eighth Chamber) dismissed the application for an accelerated procedure.

14 On 27 November 2015, the Court Registry notified the parties of the close of the written part of the procedure. The parties did not submit a request for a hearing within the time limit laid down in Article 106(2) of the Rules of Procedure of the General Court.

17 In support of the action, the applicant raises four pleas in law, alleging (i) infringement by the Commission of its duty to state reasons in relying on a general presumption of applicability of the protection of the purpose of inspections, investigations and audits; (ii) the existence of an overriding public interest in the disclosure of the documents requested; (iii) failure to state reasons as regards protection of privacy and the integrity of the individual; and (iv) infringement of the principle of sound administration.

The first plea in law, alleging an infringement of the duty to state reasons in relying on a general presumption of applicability of the protection of the purpose of inspections, investigations and audits

18 By the first plea in law, the applicant claims that the Commission failed to fulfil its duty to state reasons in relying on a general presumption applicable to the documents requested. In that regard, the applicant recalls that the rationale for applying a general presumption is that the same considerations apply to documents of the same nature. In its view, it is evident from the reasons which were given in the contested decision that different considerations apply to different types of documents. In addition, the investigation in question is now closed. Moreover, the applicant argues that OLAF’s approach of applying a general presumption to all documents frustrates the purpose of Regulation No 1049/2001.

19 Furthermore, the applicant submits that no general presumption has been recognised as applying in the present case, whether in the light of legislation or existing case-law, and the analogy drawn by the Commission with other general presumptions recognised in case-law is ineffective.

20 The Commission contends that the applicant’s arguments appear to include substantive objections which have no connection to the duty to state reasons. The contested decision contains sufficient reasons as regards both the settled case-law on access to the OLAF investigation files and the applicability of the case-law concerning the ‘regulatory’ general presumptions to the documents in those files. The general presumption, which OLAF has recently been applying, is based on the application by analogy of the now constant case-law in that regard. In the view of the Commission, OLAF documents relating to the investigations it performs should constitute a case of a general presumption of the same sort as those cases in respect of which a general presumption has already been recognised in the case-law. Recognition of such a presumption is justified by the need to preserve the useful effect of sectoral regulatory frameworks, adopted by the EU legislature, which preclude a right to access the file or protect the confidentiality of documents in the file with a view to preventing the system of public access to documents from being used to circumvent or undermine the sectoral rules.

21 The Commission states in that regard that, as in competition cases, the general presumption of non-accessibility arises from provisions of sector-specific legislation (Regulation No 883/2013) providing for strict confidentiality rules on the processing of information obtained in the course of an investigation (Article 10 and more generally Articles 3 to 16 of that regulation), and excludes a right of access to the file. If the general public and, in particular, the persons concerned, could obtain access to the file on the basis of Regulation No 1049/2001, the sector-specific rules would immediately be undermined, and the efficiency of investigations would be seriously harmed. Moreover, the confidentiality of information provided for by Regulation No 883/2013 has a very specific purpose, namely, on the one hand, to safeguard the successful conduct of an investigation in the public interest and, on the other, to protect the legitimate interests of the persons concerned, so that the information they provide to the Commission is used only for the purposes of the investigation. Finally, the Commission is of the opinion that the general presumption should apply not only before but also after the definitive closure of the investigation and its follow-up.

22 First, it is necessary to recall the rules applicable in the present case and the principles of case-law developed in respect of access to documents.

23 First, by virtue of Article 15(3) TFEU, and Article 42 of the Charter of Fundamental Rights of the European Union, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, are to have a right of access to the documents of the Union’s institutions, bodies, offices and agencies, subject to the principles and conditions to be defined in accordance with that paragraph. In particular, by virtue of the second subparagraph of that paragraph, those principles and conditions are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure.

24 Secondly, it must be pointed out that, according to the case-law of the Court of Justice, the administrative activity of the Commission does not require such extensive access to documents as that required by the legislative activity of an EU institution (judgment of 27 February 2014 in Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 91; see also, to that effect, judgment of 29 June 2010 in Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 60).

25 Thirdly, Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions (judgment of 1 February 2007 in Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 61). It is also apparent from that regulation, in particular from Article 4 thereof, which lays down a set of exceptions in that regard, that the right of access is nevertheless subject to certain limits based on reasons of public or private interest (judgments of 1 February 2007 in Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 62; 29 June 2010 in Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 51; and 27 February 2014 in Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 61).

26 Fourthly, by virtue of the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, the institutions, unless there is an overriding public interest in disclosure, are to refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits.

27 Fifthly, it is the case that, in accordance with well-established case-law of the Court of Justice, in order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to relate to an activity mentioned in Article 4(2) and (3) of Regulation No 1049/2001. The institution concerned must also supply explanations as to how access to that document could specifically and effectively undermine the interest protected by an exception laid down in that article (judgments of 1 July 2008 in Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 49, and 27 February 2014 in Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 64).

28 However, the Court of Justice has acknowledged that it is open to the EU institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (judgment of 1 July 2008 in Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 50; see also judgment of 27 February 2014 in Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 65 and the case-law cited).

29 Accordingly, the Court of Justice has acknowledged the existence of general presumptions that access to documents is to be refused in five particular situations, namely in cases concerning: the documents in the administrative file relating to a procedure for reviewing State aid (judgment of 29 June 2010 in Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 61); the documents exchanged between the Commission and the notifying parties or third parties in the context of merger control proceedings (judgments of 28 June 2012 in Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 123, and Commission v Agrofert Holding, C‑477/10 P, EU:C:2012:394, paragraph 64); the pleadings lodged by an institution in court proceedings (judgment of 21 September 2010 in Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 94); the documents relating to an infringement procedure during the pre-litigation stage of that procedure (judgment of 14 November 2013 in LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 65); and the documents in a file relating to a proceeding under Article 101 TFEU (judgment of 27 February 2014 in Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 93).

30 The General Court has acknowledged the existence of general presumptions in four additional situations, namely in cases concerning: the bids submitted by tenderers in a public procurement procedure in the event that a request for access is made by another tenderer (judgment of 29 January 2013 in Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 101); the documents relating to an ‘EU Pilot’ procedure (judgment of 25 September 2014 in Spirlea v Commission, T‑306/12, under appeal, EU:T:2014:816, paragraph 63); the documents sent by the national competition authorities to the Commission pursuant to Article 11(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) (judgment of 12 May 2015 in Unión de Almacenistas de Hierros de España v Commission, T‑623/13, EU:T:2015:268, paragraph 64); and the documents relating to the preparation by the Commission of an impact assessment for developing a policy proposal (judgment of 13 November 2015 in ClientEarth v Commission, T‑424/14 and T‑425/14, under appeal, EU:T:2015:848, paragraph 97).

31 Notwithstanding the fact that, in most of the cases referred to in paragraph 29 above, the Court of Justice examined the relationships between Regulation No 1049/2001 and another regulation containing specific accessibility rules, and concluded that it was necessary to ensure consistent application of each of those regulations, it nevertheless follows from the case-law that the relationship between two regulations is not the only criterion in order to justify the application of such general presumptions.

32 The case-law referred to in paragraph 29 above underlines the fact that the ratio legis behind the application of such general presumptions is connected with the overriding need to ensure the proper operation of the procedures in question and to ensure that their objectives are not undermined. Accordingly, a general presumption may be recognised on the basis that access to the documents involved in certain procedures is incompatible with the proper conduct of those procedures and that the risk that those procedures could be undermined, on the understanding that general presumptions ensure that the integrity of the conduct of the procedure can be preserved by limiting intervention by third parties (see, to that effect, judgment of 25 September 2014 in Spirlea v Commission, T‑306/12, under appeal, EU:T:2014:816, paragraphs 57 and 58, and Opinion of Advocate General Wathelet in Joined Cases LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:528, points 66, 68, 74 and 76). The application of specific rules provided for by a legal measure relating to a procedure conducted before an EU institution for the purposes of which the documents requested were produced is one of the criteria for recognising a general presumption (see, to that effect, judgment of 11 June 2015 in McCullough v Cedefop, T‑496/13, not published, EU:T:2015:374, paragraph 91 and the case-law cited, and Opinion of Advocate General Cruz Villalón in Council v Access Info Europe, C‑280/11 P, EU:C:2013:325, point 75).

33 The Court of Justice’s reasoning in those cases must also be applied to OLAF’s investigation activities. In other words, generalised access, on the basis of Regulation No 1049/2001, to documents in OLAF’s file, while OLAF’s investigation procedure is still ongoing, would, in principle, undermine the effective conduct of the investigation. The same is true where the investigation has been recently closed by OLAF (see paragraph 35 below).

34 It must be noted, in that respect, that OLAF’s investigation procedure is also covered by specific rules on access to information obtained or established in the course of such a procedure and on the processing of that information. By virtue of Regulation No 883/2013, which governs investigations by OLAF, OLAF is legally obliged to treat information it obtains in the course of its investigations as confidential and subject to professional secrecy, in accordance with Article 10 of that regulation. It must also be observed that no provision is made for access to documents for a person concerned by an investigation conducted by OLAF, apart from the right to receive the record of his interview with OLAF (in order to approve it or add observations), in accordance with Article 9 of that regulation. Access to OLAF’s files in fact takes place in the course of a follow-up procedure. OLAF’s final recommendation will be submitted to the competent authorities of the European Union or to the national authorities. If those authorities intend to impose penalties on a person concerned by the investigation, namely, in the present case, the applicant, they must give that person the opportunity to exercise his rights of defence in accordance with the administrative or criminal-law procedure applicable.

35 Furthermore, as regards the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 concerning the protection of investigation activities, it follows from the case-law that the protection of OLAF’s investigations extends to their follow-up, to the extent that that follow-up takes place within a reasonable period (see, to that effect, judgment of 6 July 2006 in Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraphs 108 to 113). According to that case-law, if the reasonable period for deciding what action to take in the light of information sent by OLAF to the competent authorities, has not yet expired, to grant access to OLAF’s investigation file, even partially, could compromise the effective use of those elements by the national authorities, given that the persons suspected of irregularities could act in such a way as to prevent the proper conduct of the various procedures or investigations which those authorities might decide to initiate. Likewise, it must be noted that OLAF’s investigations, and any further procedures, depend on the ability of informers and witnesses to provide information. The prospect of seeing their information, explanations or assumptions disclosed could lead them to censor the information they provide or to hold back sensitive information, which could undermine the effectiveness of EU anti-fraud policy.

36 In summary, the legislative framework applicable to OLAF precludes, in principle, a right to access OLAF’s file on the part of the persons concerned. It is only if the authorities to whom the final report is addressed intend to adopt acts which adversely affect the persons concerned that those authorities must, in accordance with the procedural rules which apply to them, provide access to OLAF’s final report in order to enable those persons to exercise their rights of defence. Consequently, to grant access to OLAF’s files or OLAF’s final reports to the general public would seriously undermine the system established by Regulation No 883/2013.

37 It follows from all the above considerations that, for the purposes of interpreting the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, it is necessary to recognise a general presumption that the disclosure of documents from the administrative file would, in principle, undermine the protection of the objectives of OLAF’s investigation activities.

38 However, that general presumption does not exclude the right of those interested parties to demonstrate that a given document, disclosure of which has been requested, is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001 (judgments of 29 June 2010 in Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 62, and 27 February 2014 in Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 100).

39 However, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the institution concerned must examine individually all the documents requested in each individual case. Such a requirement would deprive that general presumption of its proper effect, which is to permit the institution concerned to reply to a global request for access in a manner equally global (judgments of 14 November 2013 in LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 68, and 27 February 2014 in Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 101).

40 The question whether OLAF erred in applying the third indent of Article 4(2) of Regulation No 1049/2001 must be considered in the light of the case-law principles referred to above.

41 In the present case, it must be noted that the parties agree that the request for access submitted by the applicant concerns documents relating to OLAF investigations.

42 The applicant does not dispute that it follows from the contested decision that the documents referred to in paragraph 3 above, which are included in the applicant’s initial request under points (a) and (c) to (f), are part of OLAF’s investigation OF/2011/1002 of the applicant, which was closed on 12 December 2014, and that the documents included in the applicant’s initial request under point (b) relate to several ongoing investigations.

43 OLAF considered, on account of the fact that investigation OF/2011/1002 was closed on 12 December 2014, and basing its view on the case-law establishing that documents relating to investigations remain covered by the exception in Article 4(2) of Regulation No 1049/2001, where specific concluded investigations have led to the drawing-up of final reports but a reasonable period for following up the procedure has not yet elapsed, that that period for deciding on the action to be taken to follow up the information that it had submitted to the competent authority had not yet elapsed in the present case. OLAF also explained that the documents were covered by a general presumption, which applied before and after the closure of an investigation, and referred to the need to protect the confidentiality of the information and ensure the cooperation of informers. In that respect, it noted that the investigations and follow-up procedures depended largely on information provided by third-party informers and witnesses and their willingness to provide that information and that, if such information was not protected by confidentiality, the availability of those parties to contribute to the investigation would be called into question. In that context, it noted the existing specific sectoral rules governing investigations conducted by OLAF and the confidentiality obligation, such as Article 10 of Regulation No 883/2013.

44 By virtue of the case-law principles referred to above, it must be noted that OLAF was fully entitled to apply a general presumption of the confidentiality of documents relating to its investigations.

45 In that respect, the applicant’s claim that such a presumption could not apply to documents relating to a closed investigation procedure cannot succeed.

46 As has already been mentioned above, after OLAF has completed its investigation and drawn up its final report, the competent authority still has to determine the follow-up procedure. Accordingly, the general presumption also applies to a procedure that has been closed, given that the public interest protected may also be harmed after the OLAF procedure has been closed.

47 Moreover, it must be held that, since the investigation was closed on 12 December 2014 and the final report sent by OLAF to the Commission on 15 December 2014, in accordance with Article 11(3) of Regulation No 883/2013, a reasonable period for the follow-up, as OLAF correctly noted in the contested decision, had not yet elapsed on the date of adoption of that decision.

48 Likewise, the applicant cannot base its argument on the case giving rise to the judgment of 21 May 2014 in Catinis v Commission (T‑447/11, EU:T:2014:267) in order to claim that a general presumption does not apply and that, for that reason, OLAF is not freed from its obligation to give reasons. In that case, OLAF had not relied on the general presumption of non-accessibility, but had carried out an individual and specific examination of the documents requested. Consequently, the Court did not examine whether such a presumption could apply.

49 Finally, the argument that the proposal drawn up in 2008 by the Commission for amendment of Regulation No 1049/2001 ‘aimed at including general presumptions of non-accessibility’, without referring to OLAF’s investigation functions, and the argument that the Commission’s request that the Court recognise a general presumption applicable to OLAF’s files is tantamount, for the Commission, to asking the Court to infringe Article 17(2) TEU, which gives the Commission the power to draw up legislative proposals and Article 14 TEU, which confers legislative functions on the Parliament and the Council, are both irrelevant. As regards access to documents, the application of a general presumption was upheld by case-law in several fields without the legality of such a presumption being called into question in the light of Article 14 TEU and Article 17(2) TEU. There is therefore no reason to declare that the extrapolation of that presumption to OLAF’s investigation files could create difficulties in that regard. In any event, the Commission’s proposal was not adopted.

50 To conclude, as regards the alleged infringement of the obligation to state reasons, as provided for in Article 296 TFEU, and in the light of the principles deriving from the case-law referred to in paragraphs 23 to 40 above, it must be concluded, as is also clear from paragraph 43 above, that OLAF complied with that obligation.

The second plea in law, alleging the existence of an overriding public interest in the disclosure of the documents

51 By the second plea in law, the applicant claims that there is an overriding interest justifying the disclosure of the documents requested, given that they have been shared with third parties, including unauthorised third parties, such as the German publication Der Spiegel. The existence of an internal investigation into the disclosure to unauthorised third parties is not sufficient to clear the Commission of responsibility for the leaks. According to the applicant, access to the documents requested is necessary so that it can counter the extremely serious allegations made against it, inter alia by Der Spiegel. The applicant argues that it has a legitimate interest in being allowed to defend itself, including publicly. Such a defence, which would re-establish balance in the exercise of OLAF’s investigative functions, is possible only by means of the documents which to date have remained inaccessible to the applicant.

52 First, the Commission submits that any disclosure of the final report was due to an unauthorised leak, in connection with which an investigation was opened. The Commission argues that such an unauthorised leak constitutes a fact which cannot affect the assessment of the existence of an overriding public interest in the disclosure of the documents requested. Next, the Commission submits that the applicant’s interest in that disclosure is purely private, as a person concerned by the OLAF investigation. That type of individual interest, which is not shared by other citizens, cannot constitute an overriding public interest within the meaning of Regulation No 1049/2001. Finally, the Commission contends that it is for the applicant to demonstrate that there is an overriding public interest in disclosure of the documents requested. There is almost nothing in the confirmatory application concerning the existence of an overriding public interest in disclosure which is capable of neutralising the general presumption of non-accessibility, besides a vague and generic reference to the applicant’s rights of defence. In the rejoinder, the Commission adds that the applicant’s need to defend itself against ‘serious accusations’ made by the press also represents a purely personal interest and not an overriding public interest.

53 It should be borne in mind that, in accordance with the third indent of Article 4(2) of Regulation No 1049/2001, the application of the exception laid down therein is to be precluded if disclosure of the document in question is justified by an overriding public interest.

54 It must be noted that, as regards the need to obtain disclosure of the documents requested by virtue of the overriding interest, in order to be in a position to better defend itself against the claims made following the publication of an article in the newspaper Der Spiegel, that argument does not demonstrate, in itself, that there is a public interest in disclosing the documents requested which is capable of prevailing over the protection of confidentiality, within the meaning of Article 4 of Regulation No 1049/2001. Given the general principle of access to documents laid down in Article 15 TFEU and recitals 1 and 2 of Regulation No 1049/2001, that interest must be objective and general in nature and must not be indistinguishable from individual or private interests.

55 Under Article 2(1) of Regulation No 1049/2001, the beneficiaries of the right of access to documents of the institutions comprise ‘any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State’. That provision makes it clear that the purpose of the regulation is to guarantee access for everyone to public documents and not just access for the requesting party to documents concerning him (judgment of 26 April 2005 in Sison v Council, T‑110/03, T‑150/03 and T‑405/03, EU:T:2005:143, paragraph 50).

56 Consequently, the individual interest which may be asserted by a requesting party in obtaining access to documents concerning him personally cannot generally be decisive for the purposes both of the assessment of the existence of an overriding public interest and of the weighing up of interests under the third indent of Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgments of 26 April 2005 in Sison v Council, T‑110/03, T‑150/03 and T‑405/03, EU:T:2005:143, paragraph 52; 20 March 2014 in Reagens v Commission, T‑181/10, EU:T:2014:139, paragraph 144; and 21 May 2014 in Catinis v Commission, T‑447/11, EU:T:2014:267, paragraphs 61 to 64).

57 Consequently, even if the documents requested prove necessary for the applicant’s defence in an action — a question which falls to be considered in the present case — that is irrelevant for the purpose of assessing the balance of the public interest. The same is true in so far as concerns the argument that access to the documents requested is necessary in order to allow the applicant to defend itself better against the claims published in the German press.

58 It must be noted that, apart from those private interests, one of which is referred to in the confirmatory application and concerns observance of the rights of the defence in the OLAF investigation, while the other, relied on in the present proceedings, concerns the applicant’s interest in better defending itself against the claims published in Der Spiegel, the applicant has not put forward any other arguments justifying an overriding public interest.

59 Moreover, the mere fact that part of a confidential OLAF file may have been disclosed unlawfully does not justify, in itself, any derogation, in favour of the person concerned, from the confidentiality rules governing the OLAF investigation file (see, to that effect, order of 18 December 2003 in Goméz-Reino v Commission, T‑215/02, EU:T:2003:352, paragraph 65).

60 Therefore, in the light of the foregoing, the second plea in law cannot succeed.

The third plea in law, alleging a failure to state reasons as regards protection of privacy and the integrity of the individual

61 By its third plea in law, the applicant argues that it is unlikely, in the light of the nature of the documents in question, that the protection of the privacy and integrity of individuals is under threat. Moreover, OLAF has not explained why it cannot provide partial access to the documents requested while respecting privacy and the integrity of individual personal data.

62 The Commission contends that the paragraph of the contested decision on the protection of personal data was added for the sake of completeness, in so far as the documents requested also contained data protected by virtue of a different exception. However, since the contested decision is based first and foremost on the application of a general presumption, which is clear from the paragraph of that decision preceding the paragraph on personal data protection, which permits the non-disclosure of all documents requested and does not require an analysis of whether partial access should be granted, the Commission argues that that plea in law is ineffective.

63 In the present case, it must be held, as the Commission states, that, since the contested decision is already justified in law by the grounds it contains relating to the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, the present plea in law must be rejected as being, in any event, ineffective.

The fourth plea in law, alleging an infringement of the principle of sound administration

64 The applicant argues that OLAF has infringed the principle of sound administration provided for in Article 41 of the Charter of Fundamental Rights of the European Union, by failing to examine all the relevant aspects of the case and by relying on the alleged existence of a general presumption when adopting the contested decision. The principle of sound administration was also infringed as a result of the disclosure of the final report to various persons, including the author of the article which appeared in Der Spiegel and a Member of the European Parliament. The refusal to grant access to the documents requested which would enable the applicant to defend itself against the claims made by third parties, based on the documents obtained via those leaks, is also unfair.

65 The Commission contends that OLAF took into consideration all the aspects which it was required to examine in order to give its decision and provided the reasons necessary in that regard on the basis of the existence of a general presumption concerning the documents relating to its investigation activities. Accordingly, the Commission does not see how the principle of sound administration has been infringed. It recalls once again that the alleged disclosure of the final OLAF report to various persons, if it took place, would be due to an unauthorised leak and that an investigation is ongoing as regards the circumstances of that leak.

66 It must be held that, by applying a general presumption, OLAF did not infringe the principle of sound administration. As has already been noted in the context of the first plea in law, OLAF explained, in the contested decision, why a presumption would apply and extend to all documents concerned by the investigation in order to protect the integrity of the specific sectoral rules adopted by the EU legislature in respect of its activities.

67 The fact that there may have been an unauthorised leak of information protected by Article 10 of Regulation No 883/2013 does not mean that OLAF’s final report was disclosed and entered the public domain within the meaning of Regulation No 1049/2001.

68 Furthermore, while it is regrettable that a leak might have allowed the German press to obtain confidential information, that does not in itself justify the disclosure of the documents requested in the context of a procedure under Regulation No 1049/2001.

69 It follows that the fourth plea in law must also be rejected and the action therefore dismissed in its entirety.

70 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> International Management Group v Commission (Judgment) [2016] EUECJ T-110/15 (26 May 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T11015.html Cite as: ECLI:EU:T:2016:322, [2016] EUECJ T-110/15, EU:T:2016:322

Court of Justice of the European Communities (including Court of First Instance Decisions)