Case T-403/05, My Travel

>> CFI reiterates exceptions to right of access to Commission documents must be interpreted and applied strictly

The applicant, a United Kingdom travel company, had announced its intention to acquire the whole of the issued share capital of one of its competitors in the United Kingdom on the stock market and had notified the proposed concentration to the Commission. The Commission declared that concentration incompatible with the common market and with the EEA Agreement by virtue of Art. 8(3) of Regulation 4064/89. The applicant brought proceedings for the annulment of that decision, which was annulled in 2002 by the Court of First Instance.

Following this judgment, the Commission established a working group in order to consider whether it was appropriate to bring an appeal against that judgment and to assess the implications of that judgment on the procedures for the control of concentrations or in other areas.

In 2005, the applicant made a request to the Commission for access to a number of documents of this working group, pursuant to Regulation 1049/2001.

The Commission granted full access to three documents, only partial access to two other documents and no access to a number of others. In a subsequent decision, the Commission granted further partial access to a small number of documents.

The applicant claimed that the Court of First Instance should annul these two decisions. The Court held that the right of access to Commission documents existed as a matter of principle. A decision to refuse access was valid only if it was based on one of the exceptions laid down in Art. 4 of Regulation 1049/2001. According to the Court, in view of the objectives pursued by Regulation 1049/2001, the exceptions to that right set out in Art. 4 of the regulation must be interpreted and applied strictly. (see also Case C‑64/05 P Sweden v Commission and Others [2007] (on which I wrote this post) and Joined Cases T‑391/03 and T‑70/04 Franchet and Byk v Commission [2006]).

The mere fact that a document concerned an interest protected by an exception could not of itself justify application of that exception. The Court of First Instance held that such application might, in principle, be justified only if the institution had previously assessed, first, whether access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Art. 4(2) and (3) of Regulation 1049/2001, whether there was no overriding public interest in disclosure.

The Court of First Instance stressed that the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. That examination must be apparent from the reasons for the decision.

However, the Court of First Instance found that the Commission had correctly concluded that disclosure of the documents requested would have seriously undermined the decision-making process.

The applicant’s complaint that there was an overriding public interest in disclosure was rejected. As was its complaint that disclosure of the notes in reply from the legal service would not undermine the protection of legal advice. The Court of First Instance held that to accept that the notes in question should be disclosed would be liable to lead the legal service to display reticence and caution in the future in the drafting of such notes in order not to affect the Commission’s decision-making capacity in areas in which it was involved in its administrative capacity. It furthermore found that the risk of undermining the protection of legal advice was reasonably foreseeable and not purely hypothetical.

Text of Judgment