Evropaiki Dynamiki v Parliament (Access to documents - Requests for quotation : Judgment) [2017] EUECJ T-136/15 (14 December 2017)

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(Access to documents — Regulation (EC) No 1049/2001 — Requests for quotation concerning all the lots covered by a call for tenders — Refusal to grant access — Absence of specific, individual examination of the documents requested — Exception relating to the protection of public security — Exception relating to the protection of commercial interests — Exception relating to the protection of privacy — Exception relating to the protection of the decision-making process — General presumption — Unreasonable workload)

Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented initially by I. Ampazis and M. Sfyri, and subsequently by M. Sfyri and C.-N. Dede, lawyers,

Kingdom of Sweden, represented by E. Karlsson, L. Swedenborg, A. Falk, C. Meyer-Seitz, U. Persson and N. Otte Widgren, acting as Agents,

European Parliament, represented initially by N. Görlitz, N. Rasmussen and L. Darie, and subsequently by N. Görlitz, L. Darie and C. Burgos, acting as Agents,

APPLICATION on the basis of Article 263 TFEU seeking the annulment of the decision of the European Parliament of 13 February 2015 refusing to grant access to the requests for quotation in all lots of Call for Tenders ITS08 — External service provision for IT services 2008/S 149-199622,

composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín and I. Reine (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 31 January 2017,

1 The applicant, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, participated in a call for tenders made by the European Parliament under reference ITS08 — External service provision for IT services 2008/S 149-199622, concerning 16 different lots of a total value of EUR 300 million (‘CT ITS08’). Following that call for tenders, it signed, on 26 October 2009, a framework contract with the Parliament concerning lot 7, entitled ‘Development expertise in documentary applications and content management systems’ (‘Lot 7’).

2 By letter dated 14 November 2014, the applicant asked the Parliament for access to ‘all available information concerning all the requests for quotation which were issued by the [Parliament] for all lots [of CT ITS08]’ (‘the requests for quotation’ or ‘the documents requested’). The applicant sought to obtain a copy of these requests for quotation, including their technical annexes, within 15 working days of receipt of its letter. In support of its request, the applicant stated that it was suspicious of the irregular attribution by the Parliament of some tasks in Lot 7 to co-contractors used for other lots, in particular Lot 6, and that it wished to ascertain the extent of the harm suffered as a result of these allegedly unlawful attributions.

3 By email of 17 November 2014, and by letter of the same date, the Parliament acknowledged receipt of the initial request for access to the requests for quotation and informed the applicant that that request would be examined in the light of the provisions 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).

4 By email of 3 December 2014, the Parliament informed the applicant that, given the large number of documents to be examined individually, ‘largely over 1 000’, it could not meet the deadlines laid down by Regulation No 1049/2001. In that context, it suggested to the applicant that a ‘fair solution’ be sought within the meaning of Article 6(3) of that regulation, consisting of screening and communicating the documents requested for each of the lots according to an established calendar. The Parliament also suggested that the documents in Lot 7 should first be examined by 31 January 2015, and then those in Lot 6.

5 On 5 December 2014, the applicant replied to the Parliament, stating that it could not accept its proposal. In its view, all the documents requested were stored electronically and registered in electronic form, so that their disclosure would not entail an excessive workload for the Parliament. In addition, the applicant stated that, if the examination of each lot were to take two months, as under the time limit proposed by the Parliament for the examination of the documents in Lot 7, the applicant would have to wait almost three years to obtain all the documents requested. The applicant stated that, in its view, the Parliament’s proposal amounted to refusal to grant access. Accordingly, it made a confirmatory application for access to obtain all the documents required by 31 January 2015.

6 By email of 9 December 2014, the Parliament made it clear that its proposal of 3 December 2014 in no way constituted refusal to grant access to the requested documents. It also sought an extension of the time limit of 15 working days in which to respond to the initial request for access, in accordance with Article 7(3) of Regulation No 1049/2001.

7 By email of 17 December 2014, the applicant reiterated its request for disclosure of ‘all the information ... requested’ by the end of January 2015. The applicant also told the Parliament that, by its proposal of 3 December 2014, the latter had not seriously attempted to seek a fair solution, since the documents in Lot 7, which Parliament had suggested be examined first, were already in the applicant’s possession. According to the applicant, it would be appropriate to begin by examining the documents in Lot 6.

8 By decision of 18 December 2014, the Parliament rejected the initial request for access to the requests for quotation on the ground that, after an individual examination of some of the numerous documents requested, it emerged that the information contained in them was covered by exceptions to the right of access laid down in Article 4 of Regulation No 1049/2001. In addition, according to the Parliament, it could be presumed that those exceptions would apply to other documents requested, since they were of the same nature as those which had been examined. In the alternative, the Parliament stated that an individual examination of all the documents requested would represent a disproportionate workload.

9 By letter of 12 January 2015, the applicant made a confirmatory request for access to all the requests for quotation. The Parliament acknowledged receipt of that confirmatory request for access by email of 19 January 2015.

10 By email of 2 February 2015, the Parliament extended the time limit for responding to the applicant’s confirmatory request by 15 working days, in accordance with Article 8(2) of Regulation No 1049/2001.

11 By decision of 13 February 2015, the Parliament refused access to all the documents requested by the applicant (‘the contested decision’).

12 In the contested decision, the Parliament argued, first of all, that no obligation to disclose requests for quotation flowed from Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1; ‘the Financial Regulation’) or from Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 (OJ 2012 L 362, p. 1; ‘the Delegated Regulation’).

13 As regards the limits on the right of access, the Parliament stated, in essence, that the examination of the documents requested had confirmed that certain requests for quotation contained information covered by the exceptions provided for in Article 4 of Regulation No 1049/2001.

14 Firstly, certain documents revealed the details of the Parliament’s IT architecture which, combined with publicly available information in this regard, could jeopardise the security of that system. The Parliament referred in particular to security software, to applications used to manage building security parameters, such as the placing of surveillance cameras, and to the names of the applications used for logistics. Thus, according to the Parliament, the protection of public security justified refusal of access to the documents requested.

15 Secondly, some of the requests for quotation examined contain personal data, such as names, professional profiles and seniority levels of consultants providing services to Parliament. Since the necessity of disclosing of such data had not been at all established, in the view of the Parliament, access to the documents requested had to be refused to protect the privacy of the persons concerned.

16 Thirdly, the documents requested contain information of an economic and technical nature, the presentation of which could reveal the Parliament’s profile as a buyer in the market. In addition, the requests for quotation could contain information on the particular skills of the suppliers selected for each lot as well as details of their commercial strategy and alliances or links with third parties. The protection of commercial interests, namely those of the economic actors involved and of the Parliament, also justified, in the view of the Parliament, refusing all access to the documents requested.

17 Fourthly, disclosure of the documents requested could undermine the Parliament’s decision-making process in so far as it would reveal information relating to certain on-going information technology projects in respect of which a decision has not yet been adopted. According to the Parliament, this could block a long-term organisational strategy that it had developed in that area.

18 In the contested decision, the Parliament has also argued that there is no overriding public interest able to prevent application of the exceptions relating to the protection of commercial interests and of the decision-making process. In that regard, it stated that the private interest of the applicant, which claimed that it had suffered damage as a result of irregularities in the manner in which the Parliament executed the public contract in question, could not be taken into account.

19 The Parliament also stated in the contested decision that, even if it had not been able individually to examine all the documents requested by the applicant, the four exceptions to the right of access referred to were to be regarded as applying to all those documents by virtue of a general presumption, in accordance with the line of reasoning developed by the Court of Justice in its judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376).

20 Lastly, in the contested decision, the Parliament stated that individual examination of the approximately 1 500 documents requested, representing 18 000 pages to be sorted from 10 000 documents, would constitute an excessive workload for its services. Such a burden is disproportionate with regard to the interests pleaded by the applicant in support of its request for access.

21 By application lodged at the Registry of the General Court on 20 March 2015, the applicant brought the present action.

23 On 21 August 2015, the applicant lodged a reply. On 27 October 2015, the Parliament lodged a rejoinder.

24 By document lodged at the Registry of the General Court on 28 August 2015, the Kingdom of Sweden sought leave to intervene in the present case in support of the form of order sought by the applicant. By decision of 11 November 2015, the President of the First Chamber of the Court granted it leave to intervene.

25 On 8 February 2016, the Kingdom of Sweden lodged a statement in intervention. The applicant and the Parliament lodged their observations on the statement in intervention on 14 and 19 April 2016 respectively.

26 Following the enlargement of the General Court, the case was re-allocated to a new Judge-Rapporteur. After a change in the composition of the Chambers of the Court, the Judge Rapporteur was assigned to the Fourth Chamber, to which the present case was, consequently, allocated.

27 On hearing the report of the Judge-Rapporteur, the General Court (Fourth Chamber) decided to open the oral procedure. On 15 December 2016, by a measure of organisation of procedure, the Court put a number of questions to the Parliament for written reply before the hearing. The Parliament responded within the time prescribed.

28 At the hearing on 31 January 2017, the parties presented their oral arguments and answered the oral questions asked by the Court.

– order the Parliament to pay the costs, even if the application is dismissed.

31 The Kingdom of Sweden contends, in essence, that the Court should annul the contested decision.

32 In support of its action, the applicant raises two pleas in law, alleging, firstly, a failure individually to examine the documents requested and infringement of the right to partial access to the documents, as provided for in Article 4(6) of Regulation No 1049/2001 and, secondly, the incorrect application by the Parliament of the exceptions to the right of access provided for in the first indent of Article 4(1)(a), Article 4(1)(b), the first indent of Article 4(2) and Article 4(3) of that regulation, relating to the protection of public security, privacy, commercial interests and the decision-making process respectively.

33 In the defence, the Parliament argues, in the alternative, and only in the event that the General Court should consider that the two pleas in law raised by the applicant are well founded, that the contested decision nonetheless remains lawful. Indeed, as the Parliament also bases its refusal of access to the documents requested on ‘the (unwritten) and [uncontested] ground of a disproportionate administrative workload’, the General Court would not be in a position to annul the contested decision. In addition, the Parliament requests the Court to examine, of its own motion, the extent to which that fact is such as to give grounds for the possible inadmissibility of the application as a whole.

34 In that regard, it is apparent from the application that the applicant has in fact raised two pleas in law without referring to the absence of any disproportionate workload as a separate plea. However, in support of the first plea, the applicant expressly states that the Parliament’s argument regarding an excessive and disproportionate workload is not substantiated, since the Parliament has not stated the number of documents examined or the time taken to assess their content. The applicant adds that the extent of that workload is at most a few days, since the majority of the documents requested are short and are similarly structured.

35 In consequence, it must be concluded that the applicant has indeed refuted the ground expressly raised by the Parliament in the contested decision, alleging an excessive and disproportionate workload. The lawfulness of that ground will therefore be examined in this judgment with the examination of the first plea in law.

36 It must be borne in mind that the right of access to the documents of the EU institutions, bodies, offices and agencies is protected by the Charter of Fundamental Rights of the European Union and constitutes a special fundamental right. Under Article 42 of the Charter, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to those documents, whatever their medium (judgment of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 73). In addition, in accordance with recital 1 in the preamble of Regulation No 1049/2001, that regulation reflects the intention expressed in the second paragraph of Article 1 TEU — inserted by the Treaty of Amsterdam — of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 of that regulation, the right of public access to documents of the institutions is related to the democratic nature of those institutions (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 34; of 21 September 2010, 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 68; and of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 72).

37 According to settled case-law, the examination required for the purpose of processing a request for access to documents must be specific in nature (see judgment of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 69 and the case-law cited). That specific examination must, moreover, be carried out in respect of each document covered by the request. It follows from Regulation No 1049/2001 that all the exceptions referred to in Article 4(1) to (3) thereof are specified as being applicable to ‘a document’ (judgments of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 70, and of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 116).

38 However, the application of that approach as a matter of principle does not mean that such an examination is required in all circumstances. Since the purpose of the specific, individual examination which the institution must in principle undertake in response to a request for access made under Regulation No 1049/2001 is to enable the institution in question to assess, on the one hand, the extent to which an exception to the right of access is applicable and, on the other, the possibility of partial access, such an examination may not be necessary where, due to the particular circumstances of the individual case, it is obvious that access must be refused or, on the contrary, granted (judgment of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 75.

39 It is in the light of these general considerations that the pleas put forward by the applicant should be examined.

The first plea, alleging failure to carry out a specific examination of the documents requested and disregard of the right to partial access

40 The applicant argues that the Parliament’s decision to restrict its examination to only a very limited number of the requests for quotation is clearly incompatible with the established case-law of the General Court, according to which a specific, individual examination of each document is necessary, even if it is clear that a request for access refers to documents covered by an exception. In that regard, the applicant is also of the view that the argument relating to an excessive and disproportionate workload, referred to in the contested decision, is completely unsubstantiated. In its view, having regard to the nature and content of the documents requested, which are structurally alike, the work necessary amounts at most to a few days.

41 In addition, according to the applicant, the Parliament disregarded Article 4(6) of Regulation No 1049/2001 by failing to examine whether partial access to the documents requested could have been granted to the applicant.

42 In the present case, it is not in dispute that the Parliament did not undertake a specific, individual examination of all the requests for quotation, but merely examined a sample of those documents. In the contested decision, the Parliament stated, in essence, that it was entitled to refrain from making such a specific, individual examination for two reasons.

43 Firstly, the requests for quotation constitute a particular category of documents, covered by a general presumption that their disclosure would infringe four separate exceptions to the right of access. In particular, by their nature, the documents requested are not public, since there is no provision at all for their disclosure in the Financial Regulation. Secondly, a specific, individual examination of all the documents requested represents a ‘disproportionate’ workload for the Parliament’s services, having regard to the objectives of the request for access. The Parliament cites, in that regard, the judgment of 2 October 2014, Strack v Commission (C‑127/13 P, EU:C:2014:2250) which seeks to safeguard the effectiveness of the principle of good administration, as affirmed in Article 41 of the Charter of Fundamental Rights.

44 In that context, it must therefore be ascertained, firstly, whether the Parliament was entitled to claim application of a general presumption that the disclosure of the documents in question would undermine one or more of the interests protected by the exceptions laid down in Article 4 of Regulation No 1049/2001 or whether those exceptions clearly and fully cover the content of the documents requested, so that it was not required to undertake a specific, individual examination of all the documents requested. If the General Court were to find that there was no such general presumption in the present case or that those exceptions did not clearly and fully cover the content of the documents requested and, accordingly, that the Parliament was obliged to undertake a specific, individual examination of all the documents requested, it would be necessary, secondly, to ascertain to what extent the Parliament could nonetheless avoid its obligation to undertake such a specific, individual examination on the ground that that examination represented a ‘disproportionate’ workload.

Application to all the documents requested of the exceptions set out in the first indent of Article 4(1)(a), Article 4(1)(b), the first indent of Article 4(2)(b) and Article 4(3) of Regulation No 1049/2001

45 In the present case, in point F of the contested decision, entitled ‘Presumption of the applicability of the relevant exceptions under Article 4 of Regulation (EC) No 1049/2001 to all requested documents’, under the heading ‘Reassessment of your request in accordance with Article 8 of Regulation … No 1049/2001’, the Parliament stated that the documents requested are all in the same category, that of ‘requests for quotations’ and that all those documents have the same feature, since they are used to obtain a quotation from the selected provider(s) in each specific lot in order to conclude a specific contract under a framework contract.

46 On the basis of that finding, the Parliament took the view, in the contested decision, that all the documents requested were covered by four separate exceptions to the right of access set out in the first indent of Article 4(1)(a), Article 4(1)(b), the first indent of Article 4(2)(b) and Article 4(3) of Regulation No 1049/2001 relating to the protection of public security, privacy, commercial interests and the decision-making process respectively.

47 In that regard, the Court of Justice has acknowledged that it is open to the institutions to base their decisions, as regards how granting access might specifically and actually undermine the interest protected by an exception under Article 4 of Regulation No 1049/2001, 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 (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 50; of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 54; of 21 September 2010, 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 74, and of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 65).

48 In addition, one and the same justification can be applied to documents of the same category if they contain the same kind of information. However, it is only if an exception to the right of access manifestly covers the content of those documents in its entirety that the institution may avoid undertaking a specific, individual examination of those documents (see, to that effect, judgment of 9 September 2011, LPN v Commission, T‑29/08, EU:T:2011:448, paragraph 114).

49 It is therefore appropriate to examine whether, as the Parliament argues, all the documents requested were covered by one or more exceptions, on which it relies, to the right of access, either because of their particular nature or because of their content.

– The exceptions set out in the first indent of Article 4(1)(a), Article 4(1)(b) and Article 4(3) of Regulation No 1049/2001 relating to the protection of public security, the protection of privacy and the protection of the decision-making process

50 First of all, as regards the nature of the documents requested, the Parliament has failed to show at all that those documents could be covered, by reason of their particular nature, by an alleged general presumption that public security, privacy or the decision-making process would be undermined.

51 A request for quotation includes, in principle, a description of the tasks which the awarding authority wishes to have carried out under the framework contract which it has signed with the contracting party. Having regard to the great variety of goods and services which are the object of public contracts, particularly in the information technology field, it is not established that the disclosure of a request for quotation could, as a general rule and without more precise explanation, constitute a risk that public security, privacy or the decision-making process would be undermined. In that regard, the single reference to the judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376), does not constitute a specific argument showing that the documents requested were covered, because of their particular nature, by a general presumption of harm to those interests.

52 Next, with regard to the content of the requested documents, the Parliament’s line of argument must also be rejected. As regards, firstly, the exception set out in the first indent of Article 4(1)(a) of Regulation No 1049/2001 relating to the protection of public security, it is apparent from the contested decision that only ‘some of the documents screened’ or that ‘other [requests for quotation] screened’ contain information likely to undermine public security.

53 Although it cannot be ruled out that the disclosure of some of the information listed in the contested decision could actually undermine the security of the Parliament’s IT systems, the fact remains that, according to the Parliament itself, the information referred to appears in only a limited number of documents and not in all of them. In addition, at the hearing, the Parliament accepted that general information on its IT system was publicly available on the Internet and that some of that information was set out in the requests for quotation.

54 Secondly, as regards the exception set out in Article 4(1)(b) of Regulation No 1049/2001 relating to the protection of privacy, it is apparent from the third paragraph of point B of the contested decision, under the heading ‘Reassessment of your request in accordance with Article 8 of Regulation … No 1049/2001’, that ‘some of the [requests for quotation] examined contain personal data of individuals, … such as full names of [Parliament]
staff members and full names, professional profiles and seniority levels of the consultants providing services to the institution’. Similarly, in paragraph 156 of the defence, the Parliament explains that ‘some of the [requests for quotation] contain personal data ...’.

55 Although, indeed, it is not impossible for the Parliament to refuse to disclose those personal data on the basis of Article 4 of Regulation No 1049/2001, the fact remains that that exception does not manifestly cover the content of all the documents requested in its entirety, which, moreover, the Parliament accepted at the hearing. In addition, it is apparent from the various requests for quotation annexed to the application and the Parliament’s defence that the names of the consultants, if they do appear in those requests, constitute only a small part of the information and instructions contained therein. It would thus be sufficient, if necessary, to conceal them before disclosing the documents requested.

56 Thirdly, with regard to the exception relating to the protection of the Parliament’s internal decision-making process, the Parliament states, in point D of the contested decision, under the heading ‘Reassessment of your request in accordance with Article 8 of Regulation … No 1049/2001’, that the documents which it examined contain information concerning, in particular, matters on which a decision had not yet been taken. There is also a risk of suppliers subjecting the institution’s staff who are called upon to take decisions in the future to pressure, thus jeopardising the serenity of the decision-making process.

57 In that regard, the Parliament neither alleged nor demonstrated a fortiori that the exception relating to the protection of the internal decision-making process manifestly covered the contents of the requests for quotation in its entirety, since only certain information was covered.

58 Moreover, neither the contested decision nor the defence contains tangible elements allowing the conclusion that the risk that the decision-making process would be seriously undermined was reasonably foreseeable and not merely hypothetical. In particular, the Parliament fails to show that, at the time at which the contested decision was adopted, there were acts undermining, or attempting to undermine, the ongoing decision-making process, or give objective reasons on the basis of which it could be reasonably foreseen that the decision-making process would be undermined if the documents requested were disclosed (see, to that effect, judgments of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraphs 78 and 79, and of 20 September 2016, PAN Europe v Commission, T‑51/15, not published, EU:T:2016:519, paragraphs 30 and 32). In that regard, contrary to the Parliament’s submissions, the mere fact that the applicant seeks access to the requests for quotation cannot constitute, of itself, proof of a serious and foreseeable act undermining the serenity of the future decision-making process.

59 It follows from the foregoing considerations that the content of the documents requested was not manifestly covered in its entirety by the exceptions to the right of access relating to protection of public security, privacy and protection of the decision-making process.

60 Consequently, the Parliament was not entitled to claim application of the exceptions set out in the first indent of Article 4(1)(a), Article 4(1)(b) and Article 4(3) of Regulation No 1049/2001 relating to the protection of public security, the protection of privacy and the protection of the decision-making process to refuse access to the documents requested without undertaking a specific, individual examination of all of them.

– The exception set out in the first indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of commercial interests

61 In the contested decision, the Parliament states that the documents requested contained, firstly, economic and technical information likely to reveal its purchasing profile on the market and, secondly, information likely to concern the specific skills and capacities of the selected providers as well as details of their commercial strategies and their alliances with third parties. According to the Parliament, as in documents exchanged during procedures for reviewing mergers or State aid, the information in the requests for quotation drawn up by the contracting authority under a framework contract are covered by a general presumption of harm to commercial interests. That presumption flows more precisely from the Financial Regulation and the Delegated Regulation, since those regulations do not provide for any access to those requests.

62 In the present case, it is true that the Court has recognised the existence of a general presumption applicable to categories of documents because of their nature in a number of cases, including as regards bids submitted by tenderers in the performance of public contracts (see, to that effect, judgments of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 101, and of 21 September 2016, Secolux v Commission, T‑363/14, EU:T:2016:521, paragraph 59).

63 However, as regards requests for quotations, a general presumption that commercial interests would be undermined cannot be based either on the case-law cited in paragraph 62 above, relating to the bids of tenderers, or, more generally, on a line of reasoning analogous to that followed in the judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376), concerning the procedure for review of State aid, and of 28 June 2012, Commission v Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393), concerning a merger, relied upon by the Parliament in the defence.

64 The cases which gave rise to the judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376) and of 28 June 2012, Commission v Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393) had a common characteristic, namely the existence, in a specific regulatory framework distinct from Regulation No 1049/2001, of rules precisely delimiting the access to the file or to documents which were requested, as regards both the persons and the information itself.

65 It must be noted that, unlike a contract notice and a contract award notice, a request for quotation drawn up by the contracting authority in performance of a framework contract is not the subject of any particular provision of the Financial Regulation or the Delegated Regulation, in the versions applicable to the dispute, which precisely defines or restricts the information contained therein which must or may be communicated by the contracting authority to the tenderers or other bidders. In particular, the sixth subparagraph of Article 123(4) of the Delegated Regulation, cited by the Parliament, concerns only the publication of information relating to value and to contractors for specific contracts, after their conclusion. That provision therefore does not concern at all requests for quotation as such drawn up by the contracting authority in performance of a framework contract.

66 The view cannot therefore be taken that the Financial Regulation and the Delegated Regulation contain precise rules on the communication of information contained in requests for quotation drawn up by the contracting authority in performance of a framework agreement (see, to that effect, judgment of 11 June 2015, McCullough v Cedefop, T‑496/13, not published, EU:T:2015:374, paragraph 92).

67 Furthermore, in accordance with the case-law, Regulation No 1049/2001 and the Financial Regulation have different objectives and do not contain any provision expressly giving one regulation primacy over the other. Therefore, it is appropriate to ensure that each of those regulations is applied in a manner which is compatible with the other and which enables a coherent application of them (see, to that effect, judgments of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 85, and of 21 September 2016, Secolux v Commission, T‑363/14, EU:T:2016:521, paragraph 43). It is thus that the principle of transparency, referred to in Article 102 of the Financial Regulation, must be reconciled with the requirements of protection of the public interest, of the legitimate business interests of undertakings and of fair competition (see, to that effect, judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 49).

68 In that context, it has been held that, in order to attain the objective of the rules on EU public procurement, which is based on undistorted competition, it is important that the contracting authorities do not release information relating to public contract award procedures which could be used to distort competition, whether in an ongoing procurement procedure or in subsequent procedures (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 100).

69 In that regard, it is recognised in the case-law that the economic and technical information in the tenderers’ bids is such as to justify refusal by the institution concerned to grant access to the bid of the successful tenderer. That is the case in particular where such bids contain details of the specific skills of the tenderers and contribute to the individual nature and appeal of the tenderers’ bids (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 99).

70 Having regard to the nature and purpose of a request for quotation drawn up by the contracting authority in performance of a framework contract, it cannot be presumed that such a document contains economic and technical information on the contractor or details its specific skill. On the contrary, its request for quotation, which comes from the contracting authority and not from its contractors, includes as a general rule a description of the tasks which the contracting authority wishes to have carried out under the framework contract which it has signed with the contractor. In principle, it is only in response to that request for quotation that the contractor will provide details on the services which it considers it can provide to the contracting authority, the profile of the experts which it can make available and the cost of its services.

71 Furthermore, the Parliament cannot argue that the disclosure of the requests for quotation will undermine its own interests, in that disclosure could reveal its ‘purchasing profile’ on the market. In fact, even if disclosure of the relationship between the tasks to be performed and the number of working days necessary to complete them could enable the tenderers, in future public procurement procedures, to unveil the Parliament’s costing technique, the fact that tenderers could know the prices quoted in the past for a corresponding service seems more likely to lead to a situation of genuine competition than to a situation where competition would be distorted (see, to that effect, judgment of 6 December 2012, Evropaïki Dynamiki v Commission, T‑167/10, not published, EU:T:2012:651, paragraph 83).

72 Accordingly, having regard to the nature of a request for quotation drawn up by the contracting authority in performance of a framework agreement and the objective pursued by the Financial Regulation and the Delegated Regulation, the Parliament was not entitled to rely on a general presumption that the interests protected by the first indent of Article 4(2) of Regulation No 1049/2001 would be undermined to avoid a specific, individual examination of the documents requested.

73 Furthermore, it is not apparent either from the contested decision or from the file in the present case that the content of the documents requested is manifestly covered in its entirety by the exception cited in paragraph 72 above.

74 A request for quotation includes, in principle, a description of the tasks which the contracting authority wishes to have carried out under the framework contract which it has signed with the contracting party, but also more general information concerning, in particular, the practical management and monitoring of projects, the persons responsible, or the format of the reports to be provided on a regular basis. Thus, it is not established that the disclosure of all the information contained in the documents requested would undermine the commercial interests of the Parliament or of third parties.

75 In consequence, the Parliament could not rely on the exception to the right of access set out in the first indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of commercial interests to refuse to carry out a specific, individual examination of the documents requested and to disclose them.

76 It follows from the foregoing considerations that the Parliament has failed to show that, because of their nature, the requests for quotation were covered by a general presumption that their disclosure would undermine one or more of the exceptions to the right of access set out in Article 4 of Regulation No 1049/2001 all that, by reason of their content, an exception to the right of access manifestly covered the content of those documents in its entirety.

77 In consequence, the Parliament was bound, in principle, to carry out a specific, individual examination of all the documents requested, in order to examine the possibility of granting, if appropriate, at least partial access to those documents. However, it remains appropriate to ascertain whether a derogation from that obligation could be accepted due to the unreasonable workload which that examination would have represented for the services of the Parliament.

78 In accordance with the case-law, it flows from the principle of proportionality that the institutions may, in particular cases in which the volume of documents for which access is requested or in which the number of passages to be censured would involve an inappropriate administrative burden, balance the interest of the applicant for access against the workload resulting from the processing of the application for access in order to safeguard the interests of good administration (judgments of 6 December 2001, Council v Hautala, C‑353/99 P, EU:C:2001:661, paragraph 30, and of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 27).

79 Nonetheless, it is only in exceptional cases and only where the administrative burden entailed by a specific, individual examination of the documents proves to be particularly heavy, thereby exceeding the limits of what may reasonably be required, that a derogation from that obligation to examine the documents may be permissible (judgment of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 112).

80 In addition, in so far as the right of access to documents held by the institutions constitutes an approach to be adopted in principle, the institution relying on the unreasonableness of the task entailed by the request bears the burden of proof of the scale of that task (judgments of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 113, and of 10 September 2008, Williams v Commission, T‑42/05, not published, EU:T:2008:325, paragraph 86).

81 Lastly, where the institution has adduced proof of the unreasonableness of the administrative burden entailed by a specific, individual examination of the documents referred to in the request, it is obliged to try to consult with the applicant in order, firstly, to ascertain or to ask him to specify his interest in obtaining the documents in question and, secondly, to consider specifically whether and how it may adopt a measure less onerous than a specific, individual examination of the documents. Since the right of access to documents is the principle, the institution nevertheless remains obliged, against that background, to prefer the option which, whilst not itself constituting a task which exceeds the limits of what may reasonably be required, remains the most favourable to the applicant’s right of access (judgment of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 114).

82 It follows that the institution may avoid carrying out a concrete, individual examination only after it has genuinely investigated all other conceivable options and explained in detail in its decision the reasons for which those various options also involve an unreasonable amount of work (judgment of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 115).

83 In the light of the case-law cited in paragraphs 78 to 82 above, it is appropriate to ascertain whether, in the present case, three cumulative conditions are met, namely, firstly, whether the workload represented by the specific, individual examination of the documents requested is unreasonable, secondly, whether the Parliament has attempted to consult with the applicant and, thirdly, whether it has genuinely investigated all other conceivable options to a specific, individual examination of the documents requested.

84 With regard to the first condition, it is apparent from the contested decision, but mainly from the defence and rejoinder and the Parliament’s explanations given at the hearing, that the examination of all the requests for quotation would require the manual extraction of approximately 1 500 documents from among more than 10 000 documents in over 1 000 files. Those 1 500 documents, comprising on average 12 pages each, represent a total of at least 18 000 pages and concern only the requests for quotation managed by the Directorate-General for Innovation and Technological Support (DG ITEC). During the hearing, the Parliament also explained that that number represented only approximately 75% of the documents requested, it being understood that the remaining 25% were in the files of other Parliament Directorates-General. In addition, it was recalled that the framework contracts concluded following Call for Tender ITS08 relate to 16 different lots, for a total value of EUR 300 million, and were executed by nine Directorates-General.

85 The figures cited in paragraph 84 above were not seriously disputed by the applicant. It is therefore reasonable to conclude that the documents requested are extremely numerous.

86 It is true, as the Kingdom of Sweden points out, that a mere reference to a number of pages is not sufficient, as such, for the purpose of assessing the amount of work entailed by a specific, individual examination. The amount of work entailed in considering a request for access also depends on the nature of those documents and, accordingly, the required depth of the examination (judgment of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 111).

87 Nevertheless, it is clear from the file, in particular from the examples of request for quotation provided by the Parliament, that those requests include at least one annex containing details of the specifications of the project in question. That annex includes a number of chapters, each with a separate subject matter. Although it is true that the structure of the specifications may appear to have some similarities and that certain general specifications recur, the fact remains that each of the 16 lots under Call for Tender ITS08 has a separate subject matter. The description of the subject matter and stages of the project in question, and the technical conditions applicable, are therefore specific to each request for quotation drawn up by the contracting authority under a framework contract and require a specific analysis.

88 In addition, the Parliament has explained that, according to an estimate by DG ITEC, extracting documents would require 22 working days for a full-time person, while sorting and document analysis would still require 264 working days for a person dedicated exclusively to that task. That operation would also have to be carried out in the eight other Directorates-General concerned, in coordination with DG ITEC, which would require additional collaborative and consultative work between the various Directorates-General.

89 In that regard, the applicant’s assertion at the hearing that it would have sufficed to create simple software to recognise certain data in the requests for quotation and obscure them is not sufficient to call into question the Parliament’s explanations in paragraph 88 above. Aside of the fact that that argument is in no way substantiated, it fails to take account of the variety of the information contained in the requests for quotation and of the fact that each of the documents requested contains individual information the disclosure of which must be examined in the light of the various exceptions to the right of access.

90 Having regard to the foregoing conclusions, and in the absence of probative elements provided by the applicant showing the inaccuracy of the numbers and indications put forward by the Parliament, it must be concluded that an individual examination of all the documents requested would constitute a particularly heavy workload for the Parliament.

91 In the particular circumstances of the present case, that administrative task can be regarded as unreasonable to the extent that it would mean, in order to examine all the documents requested within the strict time limits laid down in Article 7(1) and (3) and Article 8(1) and (2) of Regulation No 1049/2001 and, moreover, by the date of 31 January 2015 imposed by the applicant, that is to say 32 working days, allocating a number of full-time staff to the examination of the documents requested, in a number of Directorates-General, solely for the interest of the applicant. That staff, recruited within the Parliament to carry out tasks in the public interest and paid by public funds, would therefore no longer be in a position to carry out the tasks allotted to them as a priority to serve that public interest, which could seriously compromise the proper functioning of the services concerned.

92 Thus, the Parliament was entitled to weigh up, on the one hand, the interest in public access to documents and, on the other, the workload which that would cause, in order to safeguard the interests of sound administration (see, by analogy, judgment of 6 December 2001, Council v Hautala, C‑353/99 P, EU:C:2001:661, paragraph 30).

93 As regards the second condition, namely the obligation on the Parliament to consult with the applicant, it is clear from the Parliament’s email of 3 December 2014 that it drew the applicant’s attention to the large number of the documents requested and requested it to give details of its interest in the disclosure of those documents. The Parliament also made a proposal to the applicant that a fair solution within the meaning of Article 6(3) of Regulation No 1049/2001 be sought, suggesting that a timetable be set for examination of the documents requested on the basis of the priorities set by the applicant.

94 Thus, the applicant had the opportunity to seek a solution with the Parliament which would enable the applicant to obtain access to the documents requested without it bringing about an unreasonable workload and potentially paralysing the functioning of the Parliament services concerned. However, as is set out in paragraph 95 below, the applicant took no advantage of that opportunity.

95 As regard the third condition, relating to the obligation genuinely to investigate other less onerous solutions, clearly, in the email of 5 December 2014, the applicant rejected from the outset the Parliament’s proposal referred to in paragraph 93 above and did not provide any details as to the lots which were of interest to it as a priority. On the contrary, it stated that, to its knowledge, all the documents requested were electronically registered in the Parliament’s registers and that their publication should not cause too much inconvenience, so that the deadline of 31 January 2015 would not even be necessary. Moreover, according to the applicant, if the Parliament required a period of two months for each lot, that would mean that the examination of all the documents would take approximately three years, namely two months for each of 16 lots, which would have deprived the applicant of its rights and would also have deprived Regulation No 1049/2001 of all practical effect. The applicant therefore reiterated its request for access to all the requests for quotation, in their entirety, holding to the date of 31 January 2015.

96 Similarly, in the email of 17 December 2014, the applicant reiterated its request for disclosure of the documents requested by the end of January of the following year at the latest. According to it, that would have been perfectly possible given the high degree of digitalisation at the Parliament. The applicant also stated, with regard to its alleged refusal to seek a fair solution, that the Parliament had suggested commencing by examining the documents in Lot 7, despite the fact that those were already in the applicant’s possession. Thus, the Parliament’s proposal was itself unfair and was intended rather to delay the applicant’s action. Lastly, the applicant stated that the Parliament could have started by disclosing all the documents relating to Lot 6.

97 Nor did the applicant withdraw its request for access to the documents in Lot 7, despite the fact that they were already in its possession. As the Parliament explained at the hearing, examination of the documents in Lot 7 was also necessary since their disclosure could have had the effect of making them accessible to the public at large.

98 In addition, in the application, the applicant stated that it was suspicious that contracts were improperly awarded to competitors which had succeeded in other lots of the Call for Tender ITS08, in particular Lots 6 and 8. It would therefore have been perfectly possible for it to ask the Parliament to examine the documents in those two lots as a priority. In that regard, the applicant cannot claim, at the stage of the application, that its request for access was dictated exclusively by considerations connected with the public interest and observance of the principle of transparency, since those considerations are not at all apparent in either its initial request for access or its confirmatory request.

99 What is more, as the Parliament states in the defence, it is clear from the description of each of the 16 lots in Call for Tender ITS08 that a number of those lots relate to services of a type very different from that of the services under Lot 7. Lot 7 concerns the development of IT services, their implementation and their maintenance in areas such as document management or content management for Internet sites. A number of the lots do not relate at all to the development of such services, but relate to service as varied as, for example, telecommunications (Lot 2), assistance to users (Lot 3), or assessment, advice and expertise in the area of telecommunications and security (Lot 12). It is therefore clear from the description of those lots that the applicant could not argue that it had an equivalent interest in all of them which would have justified the need to obtain all the documents requested by 31 January 2015.

100 Thus, in the very particular context of the present case, where the applicant’s attitude has been one devoid of any cooperation and it has refused purely and simply, on two occasions, the Parliament’s proposal, when it could perfectly well have designated the documents which, in its view, were a priority, it was impossible for the Parliament, within the strict time limit laid down in Regulation No 1049/2001, to make other concrete proposals which would have made it possible to grant at least partial access to the documents requested, in order to reconcile the interest of sound administration with that of public access to the documents requested.

101 That conclusion is in no way called into question by the applicant’s argument that, in the email of 3 December 2014, the Parliament implied that the examination of all the documents requested would take over three years. Indeed, firstly, such an interpretation is not corroborated by the terms of that email and, secondly, the stages and time limits for the examination of the documents requested could have exactly agreed with the Parliament if the applicant had taken the trouble to determine its priorities and set a timetable, as the Parliament proposed.

102 It follows from the foregoing that, in the very particular circumstances of the present case, in light of the amount of work entailed, the proposal made by the Parliament and the applicant’s attitude, the Parliament was entitled to claim an unreasonable burden of work in refusing to make a specific, individual examination of all the documents requested without being required, in the absence of other conceivable options, to set out in detail, in its decision, the reasons for which those other options would also mean an unreasonable workload. In consequence, the Parliament was entitled generally to refuse access to those documents, without it being necessary to request it to produce a copy of the documents which it had actually examined.

103 Accordingly, the first plea in law must be rejected and, in consequence, the action must be dismissed, without examining the merits of the second plea in law, which is irrelevant to the lawfulness of the contested decision.

104 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Furthermore, under Article 138(1) of the Rules of Procedure, Member States which intervened in the proceedings are to bear their own costs.

105 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Parliament. The Kingdom of Sweden, intervener, is to bear its own costs.

2. Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the Parliament;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Evropaiki Dynamiki v Parliament (Access to documents - Requests for quotation : Judgment) [2017] EUECJ T-136/15 (14 December 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T13615.html Cite as: [2017] EUECJ T-136/15

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