By letter of 27 March 2002, the Commission rejected that application for access stating, in particular, that the documents sought were covered by the exception in Art. 4(2) of Regulation 1049/2001. The Commission also stated that the documents concerning TGI were documents forming part of the current formal investigation procedure C 44/2001.
On 2 October 2002, at the conclusion of the second formal investigation procedure under reference C 44/2001, the Commission adopted Decision C(2002) 2147 final concluding, in particular, that the bank loan granted to TGI constituted State aid incompatible with the common market. TGI challenged that decision by bringing an action for annulment before the General Court on 17 December 2002 (Case T-378/02), that case having been since removed from the register by an order of 16 might 2007.
By application lodged at the Registry of the General Court on 8 August 2002, TGI brought an action for the annulment of the contested decision, save in so far as the latter refused access to documents directly connected with the procedure currently in progress concerning the review of State aid concerning Schott Glas.
The General Court concluded that the complaint based on the lack of a concrete, individual examination of the documents referred to in the application for access had to be upheld and that the Commission’s pure and simple refusal of access to the applicant was, consequently, vitiated by an error of law. The General Court therefore ruled that the Commission had infringed Art. 4(2) of Regulation 1049/2001 and that the contested decision, in so far as it refused access to documents relating to procedures for reviewing State aid granted to TGI, therefore had to be annulled.
In support of its appeal, the Commission claimed misinterpretation of Art. 4(2) of Regulation 1049/2001; second, disregard of the intention of the legislature; third, disregard of the wording of Art. 4 of that regulation; fourth, infringement of Art. 255 EC having regard to the provisions and the purpose of the said regulation; and, fifth, the existence of other errors of law in the judgment under appeal.
The Court held that the Commission had refused, precisely, to communicate to TGI documents relating to procedures for reviewing State aid which had been granted to it, invoking the exception to the right of access laid down in Art. 4(2), third indent, of Regulation 1049/2001, based on protection of the purposes of inspections, investigations and audits. As was apparent from the judgment under appeal, those documents, such as covered by the application for access brought by TGI on the basis of that regulation, did indeed fell within an activity of “investigation’, within the meaning of that provision.
The Court held that it was true that, in order to justify refusal of access to a document the disclosure of which had been requested, it was not sufficient, in principle, for that document to fell within an activity mentioned in Art. 4(2) of Regulation 1049/2001. The institution concerned must also supply explanations as to how access to that document could specifically and effectively undermined the interest protected by an exception laid down in that Article
However, the Court reiterated that it was, in principle, open to the Community institution to based its decisions in that regard on general presumptions which applied to certain categories of documents, as considerations of a generally similar kind were likely to apply to requests for disclosure relating to documents of the same nature (Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council ).
The Court held that the procedure for reviewing State aid was, in view of its general scheme, a procedure initiated in respect of the Member State responsible for granting the aid, and the Commission could not, without infringing the rights of the defence, use in its final decision information on which that Member State was not afforded an opportunity to comment (Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission ).
The Court held that the interested parties, except for the Member State responsible for granting the aid, did not have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file.
It followed that, for the purposes of interpreting the exception laid down in Art. 4(2), third indent, of Regulation 1049/2001, the General Court should, in the judgment under appeal, had taken account of the fact that interested parties other than the Member State concerned in the procedures for reviewing State aid did not have the right to consult the documents in the Commission’s administrative file, and, therefore, had acknowledged the existence of a general presumption that disclosure of documents in the administrative file in principle undermined protection of the objectives of investigation activities.
Consequently, according to the Court, the judgment under appeal must be set aside in so far as it annulled the contested decision, without there being any need to examine the second part of that plea or the Commission’s other pleas in support of its appeal.