Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Contracts Expression
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The European Court of Justice held that EU institutions may rely on a general presumption that disclosure of documents in the administrative file, related to the state legal aid review process, in principle undermines protection of the objectives of investigation activities. To rebut such presumption, the interested party must demonstrate that the requested document is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document.
This case analysis was contributed by Right2Info.org.
German company Technische Glaswerke Ilmenau (TGI) asked the European Commission (Commission) to provide access to all documents in the state aid cases concerning TGI, and to all documents concerning state aid for the undertaking Schott Glas, except for business secrets relating to other undertakings. The Commission refused to grant access on the ground that disclosure of the documents would undermine the protection of “the purpose of inspections, investigations and audits” (Article 4(2), second indent, of Regulation No. 1049/2001). The General Court annulled the Commission’s decision. The Commission appealed to the Court of Justice.
The Court found that although, in principle, the Commission must supply explanations as to how access to a particular document could “specifically and effectively undermine the interest protected by an exception”, the Commission could also base its decision to refuse disclosure “on general presumptions which apply to certain categories of documents”.
The Court found that in the state aid review procedure, interested parties, except for the Member States responsible for granting legal aid, did not have a right to consult the documents in the Commission’s administrative file. Otherwise, the Court said, “the system for the review of state aid would be called into question”.
The Court further held that “documents relating to procedures for reviewing state aid, such as those requested by TGI, fall within the framework of administrative functions” of the Commission, in contrast with cases where the Commission acted in the capacity of a legislature, “in which wider access to documents should be authorized”.
The Court therefore acknowledged that in the process of state aid review there was “a general presumption that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities”.To rebut such presumption, the interested party had to demonstrate that (i) the requested document was not covered by that presumption, or (ii) there was a higher public interest justifying the disclosure of the document.
The Court concluded that “the Commission (…) was able to refuse access to all the documents relating to procedures for the review of state aid covered by TGI’s request for access on the basis of [the Regulation], and could do so without first making a concrete, individual examination of those documents”. The Court did not find any evidence capable of rebutting the general presumption in this case and dismissed TGI’s action.
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