Case C‑64/08, Engelmann

This reference for a preliminary ruling, which related to the interpretation of Arts 43 EC and 49 EC had been made in the context of criminal proceedings against Mr Engelmann for failure to comply with the Austrian legislation concerning the operation of gaming establishments.

In Austria, games of chance were regulated by the Federal Law on Games of Chance (Glücksspielgesetz).

Pursuant to Paragraph 21(1) of the GSpG, the Federal Minister for Finance might grant the right to organise and operate games of chance by issuing concessions to operate gaming establishments. The number of concessions which might be granted was limited to a total of 12 and only one concession might be issued for each municipal territory.

In Germany, the 12 operating concessions for gaming establishments provided for in Paragraph 21 of the GSpG were currently held by Casinos Austria AG.

The concessions were initially granted to that company by administrative order of 18 December 1991 for a maximum period of 15 years.

Mr Engelmann, a German national, operated gaming establishments in Austria, from the beginning of 2004 to 19 July 2006 in Linz and from April 2004 to 14 April 2005 in Schärding. In those establishments, he offered his customers, inter alia, a game called “observation roulette” and the card games “Poker” and “Two Aces’. He had not sought a concession to organise games of chance, nor was he the holder of a lawful authorisation in another Member State.

By judgment of 5 March 2007, the Bezirksgericht Linz (District Court, Linz) found Mr Engelmann guilty of organising games of chance on Austrian territory in order to obtain a pecuniary advantage. It therefore ordered him to pay a fine of EUR 2 000.

In appeal, the national court asked whether Art. 43 EC prohibited two of the conditions imposed by the national legislation on holders of concessions to operate gaming establishments, namely, the obligation to adopt the legal form of a public limited company and the obligation to have their seat in national territory.

Obligation on concessionaires to adopt legal form of public limited company

The Court first of all reiterated that the condition that persons wishing to operate gaming establishments must adopted the legal form of a public limited company was a restriction on freedom of establishment within the meaning of Art. 43 EC. Such a condition prevented, inter alia, operators who were natural persons and undertakings which, in the country in which they were established, had chosen another corporate form from setting up a secondary establishment in Austria (see, to that effect, Case 107/83 Klopp [1984]; Case 143/87 Stanton and L’Étoile 1905 [1988]; and Case C‑171/02 Commission v Portugal [2004]).

However, Art. 46(1) EC allowed restrictions justified on grounds of public policy, public security or public health. A certain number of overriding reasons in the public interest which might also justify such restrictions had been recognised by the case-law of the Court, including, in particular, the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gambling, as well as the general needed to preserve public order.

The Court held that certain objectives might justify requiring operators to adopt a particular legal form. The obligations binding public limited companies in regard, in particular, to their internal organisation, the keeping of their accounts, the scrutiny to which they might be subject and relations with third parties could justifiy such a requirement, having regard to the specific characteristics of the gaming sector and the dangers connected with it.

According to the Court, it was for the national courts to carry out that assessment.

Obligation on persons holding concessions to operate gaming establishments to have their seat in national territory

The Court held that, in essence the obligation on persons holding concessions to operate gaming establishments to have their seat in national territory constituted a restriction on freedom of establishment within the meaning of Art. 43 EC inasmuch as it discriminated against companies which had their seat in another Member State and prevented those companies from operating gaming establishments in Austria by way of an agency, branch or subsidiary.

According to the Court, doubt was not in any way cast on that founding by the fact, raised by the Austrian Government, that the obligation in question was imposed on operators only from the time that they were selected and for the duration of the concession. The Court held that such an obligation might deter companies established in other Member States from applying, owing to the establishment and installation costs in Austria that they would have to incur if their application were successful. Nor could that system avoid a company whose seat was located in another Member State being prevented from operating gaming establishments in Austria through an agency, a branch or a subsidiary.

The Court reiterated that, to the extent that a restriction, such as that which had been found to exist in the present case, was discriminatory, it was compatible with European Union law only if it was covered by an express derogating provision, such as Art. 46 EC, namely public policy, public security or public health (Case C‑388/01 Commission v Italy [2003] and Case C‑153/08 Commission v Spain [2009]).

Moreover, such a restriction must satisfy the conditions which flow from the Court’s case-law in regard to proportionality and might be regarded as appropriate for ensuring attainment of the objective relied upon only if it genuinely reflected a concern to attain it in a consistent and systematic manner (Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009]).

The Court reiterated that the categorical exclusion of operators whose seat was in another Member State appeared disproportionate, as it went beyond what was necessary to combat crime. There were indeed various measures available to monitor the activities and accounts of such operators (see, to that effect, Case C‑243/01 Gambelli and Others [2003]; Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others [2007]).

The Court thus concluded that Article 43 precluded national legislation under which games of chance might be operated in gaming establishments only by operators whose seat was in the territory of that Member State.

The Court added that the obligation of transparency flowing from Arts 43 EC and 49 EC and from the principle of equal treatment and the prohibition of discrimination on grounds of nationality precluded the grant without any competitive procedure of all the concessions to operate gaming establishments in the territory of a Member State.

Text of Judgment

Case C‑399/08 P, Deutsche Post

Appeal in Deutsche Post state aid case dismissed

By its appeal, the Commission of the European Communities sought to have set aside the judgment of the Court of First Instance of the European Communities (now “the General Court’) in Case T‑266/02 Deutsche Post v Commission [2008], by which it annulled Commission Decision 2002/753/EC of 19 June 2002 on measures implemented by Germany for Deutsche Post AG.

 By virtue of the German Postverfassungsgesetz , the German postal administration was divided into three distinct legal entities, namely Deutsche Bundespost Postdienst (‘DB Postdienst’), Deutsche Bundespost Telekom (‘DB Telekom’) and Deutsche Bundespost Postbank.

In 2001, Commission decided that Deutsche Post had infringed Art. 82 EC since it had abused its dominant position only in the market segment of parcel deliveries for mail-order businesses for goods ordered by catalogue or electronically, in particular by practising, from 1990 to 1995, a policy of selling below cost at prices lower than the actual costs connected to the type of service concerned (Decision 2001/354)

In 2002, the Commission adopted the contested decision, by which it decided that the amount of the transfers made – pursuant to Art. 37(3) of the PostVerfG – by DB Telekom then by Deutsche Telekom AG in favour of DB Postdienst then of Deutsche Post as compensation for the provision of services of general economic interest (‘SGEI’) was greater than that necessary to compensate for the net additional costs caused to the latter two undertakings by their provision of those services.

The Commission inferred therefrom that the amount corresponding to such overcompensation had been used to make good losses in the segments of the door-to-door parcel delivery sector open to competition. According to the contested decision, those losses amounted to a total of DEM 1 118.7 million and were the result of DB Postdienst’s policy of selling below cost, then that of DEUTSCHE POST during the period from 1994 to 1999, as established by Decision 2001/354.

The Commission therefore concluded that such overcompensation constituted State aid incompatible with the EC Treaty and ordered Germany to take the necessary steps to recover the aid from Deutsche Post.

In support of the present appeal, the Commission raised two grounds, the first alleging breach of Arts 87(1) EC and 86(2) EC, in that the General Court held that the method used to conclude that there was State aid was unlawful, and the second alleging breach of Art. 230 EC, on the ground that the General Court exceeded its powers by substituting its own method for calculating the additional costs associated with the provision of SGEI for that employed by the Commission.

The Court of Justice first of all reiterated that the classification as “aid” within the meaning of Art. 87(1) EC required that all the conditions set out in that provision were fulfilled (see inter alia Case C-206/06 Essent Netwerk Noord and Others [2008], on which I wrote this post).

Thus, for a national measure to be classified as State aid, first, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must conferred an advantage on the recipient; fourth, it must distort or threaten to distort competition (see in particular, Case C‑237/04 Enirisorse [2006]; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006], on which I wrote this post).

Since this ground of appeal concerned only the third of those conditions, it was, according to the Court appropriate to note that, according to settled case-law, measures which, whatever their form, were likely directly or indirectly to favour certain undertakings or were to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions were regarded as State aid.

The with regard to undertakings responsible for an SGEI, the Court stressed that where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings did not enjoye a real financial advantage and the measure thus did not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, that measure was not caught by Art. 87(1) EC. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied. In particular, the compensation could not exceed what was necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations (see, Case C‑53/00 Ferring [2001] and Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003]).

The General Court concluded, correctly, that the method applied by the Commission in the contested decision was defective. The Court of Justice found that the General Court could not properly be accused of not having relied upon deficiencies in the method used by the Commission in the contested decision. Indeed, it followed from the foregoing that those deficiencies were noted by the General Court in its examination of the lawfulness of that method in the light of Art. 87(1) EC.

The Court found that the others grounds of appeal must also be rejected as unfounded. The General Court , without making any error of law, accepted Deutsche Post’s first complaint in its action for annulment, according to which the Commission had infringed Art. 87(1) EC in finding that the transfers made by DB Telekom had conferred an advantage on Deutsche Post. Nor could the General Court validly be criticised for having exceeded its powers in breach of Art. 230 EC.

Text of Judgment

Case C‑290/07 P, Commission v. Scott SA

By its appeal, the Commission of the European Communities requested the Court of Justice to set aside the judgment of 29 March 2007 in Case T‑366/00 Scott v Commission [2007] . By that judgement, the General Court had annulled Art. 2 of Commission Decision 2002/14/EC of 12 July 2000 on the State aid granted by France to Scott Paper SA/Kimberly-Clark.

The state aid concerned was aid granted in the form of a preferential price for developed land. Scott Paper Company was an American company engaged in the manufacture of paper for sanitary and household used. The land in question had been sold to Sempel, for the nominal figure of FRF 1, by the City of Orléans (pictured), which had itself acquired the land earlier through three transactions: 30 hectares in 1975, 32.5 hectares in 1984 and 5.5 hectares in 1987. The City of Orléans and the departément of Le Loiret undertook to cover the costs of developing the site up to a maximum of FRF 80 million.

At the end of 1987, Sempel sold Scott a parcel of the developed land – 48 hectares out of the 68 hectares available – for the sum of FRF 31 million (approximately EUR 4.7 million), in accordance with an agreement concluded on 31 August 1987 between the City of Orléans, the departément of Le Loiret and Scott.

That sale was not notified to the Commission under the rules on State aid.

In January 1996, Scott’s shares were purchased by Kimberly-Clark Corp, which announced the closure of the manufacturing plant in January 1998. The plant’s asset – namely, the site and its improvements – were purchased by Procter & Gamble in June 1998.

Following a report by the French Cour des comptes (Court of Auditors) for 1996 which commented on the sale of the parcel of land to Scott, the Commission received a complaint. In May 1998, it decided to initiate the procedure provided for under Art. 88(2) EC, which led to the adoption of the contested decision.

The contested decision, as amended by the corrigendum of 2 March 2001, declared incompatible with the common market the State aid implemented in favour of Scott in the form of a preferential purchase price for 48 hectares of land – worth an amount assessed at FRF 39.588 million (approximately EUR 6.03 million) or, at present-day values, FRF 80.77 million (EUR 12.3 million) – and the application of the water treatment levy at a preferential rate, the value of which was to be determined by the French authorities.

Art. 2 of that decision required repayment of the amount already unlawfully made available in that way.

By the appeal, the Commission claimed that the Court should set aside the judgment under appeal and gave judgment on the matters subject to appeal, or, for any matter for which it considered that the state of the proceedings did not permit it to give judgment, to refer the case back to the General Court for a decision.

The Commission inter alia took issue with the fact that the General Court held that, for the purposes of assessing the value of the land at issue and its improvements, the Commission was wrong in choosing the costs-based method used by the French authorities and that it had thereby acted in breach of its obligation to examine the facts of the case impartially and diligently.

According to the Commission, however, given the absence, at the date of the grant of the aid in question, of any valuation of that land or of the organisation of a public call for tenders, it was justified in using such a method.

Broad discretion Commission

The Court stressed that in the area of State aid, the Commission enjoyed a broad discretion the exercise of which involved economic assessments which must be made in a European Union context, that did not imply that the European Union judicature must refrain from reviewing the Commission’s interpretation of economic data.

According to the case-law of the Court, not only must the European Union judicature, inter alia, establish whether the evidence relied on was factually accurate, reliable and consistent but also whether that evidence contained all the relevant information which must be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions drew from it (Case C‑12/03 P Commission v Tetra Laval [2005] and Case C-346/06, Ruffert [2008], on which I wrote this post).

However, when conducting such a review, the European Union judicature must not substitute its own economic assessment for that of the Commission (Case C‑525/04 P Spain v Lenzing [2007]).

The review by the European Union judicature of the complex economic assessments made by the Commission was necessarily limited and confined to verifying whether the rules on procedure and on the statement of reasons had been complied with, whether the facts had been accurately stated and whether there had been any manifest error of assessment or misuse of powers (see Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission and Others [2009]).

With regard to the choice of the costs-based method and the assessment of the market value of the undeveloped land at issue, the Court stressed that the use of an independent expert was a method by which an assessment of the market value of land could be obtained.

By applying that method, the Commission arrived at a market value for the undeveloped land at issue – FRF 10.9 million – which roughly tallied with the information produced by the French authorities during the administrative procedure. The Commission had no compelling reason to doubt the reliability of that information. According to the Court, it was entirely legitimate for the Commission to prefer to rely on the information provided by the French authorities.

With regard to the assessment of the market value of the improvements carried out on the land at issue, the Court held that the Commission could not be criticized for not requesting clarification from Scott on that point, in so far as a link between the extension of the surface area of the factory and the cost overrun could readily be inferred.

The Court concluded that in so far as the General Court did not demonstrate that the Commission had made a manifest error of assessment in the determination of the market value of the land at issue and its improvements, it had exceeded its jurisdiction by holding that, on the facts, the Commission had, in its examination of the market value of the land at issue, acted in breach of its duty to exercise due diligence.

The Court reiterated that the Commission was required, in the interests of sound administration of the fundamental rules of the EC Treaty relating to State aid, to conduct a diligent and impartial examination of the contested measures, so that it had at its disposal, when adopting the final decision, the most complete and reliable information possible for that purpose (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998]).

According to the Court, it should also be borne in mind that the lawfulness of a decision concerning State aid fell to be assessed by the European Union judicature in the light of the information available to the Commission at the time when the decision was adopted (Case C‑390/06 Nuova Agricast [2008]).

The Court found that the General Court had erred in law in holding that, on the basis of the evidence available to it when it adopted the contested decision, the Commission had acted in breach of its duty to exercise due diligence for the simple reason that the Commission had not requested either Scott or the French authorities to produce the valuations of the land at issue to which they referred merely in order to call in question the valuation used by the Commission and that it had not reopened the investigation procedure.

 Text of Judgment

Case C-139/07 P, Technische Glaswerke Ilmenau GmbH

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 [2008]).

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 [2002]).

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.

Text of Judgment

Case C-28/08 P, Bavarian Lager

Commission rightfully refusing Bavaria Lager access to certain EU documents

(Mensing & Stetcher 1879)

By this appeal, the Commission of the European Communities sought the annulment of the judgment of the Court of First Instance of the European Communities (now “the General Court’) of 8 November 2007 in Case T-194/04 Bavarian Lager v Commission [2007], on which I wrote this post,  

By that  judgment, the General Court had annulled the Commission’s decision of 18 March 2004, rejecting the request by Bavarian Lager for access to the full minutes of a meeting of 11 October 1996, held in the context of a procedure for failure to fulfil obligations

According to its Preamble, the purpose of Regulation 1049/2010 was to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access. In principle, all documents of the institutions should be accessible to the public.

According to Art. 2 of Regulation 1049/2001, “any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, had a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.”

However, certain public and private interests could be protected by way of exceptions. In particular, institutions were entitled to refuse access to a document where disclosure would inter alia undermined the protection of “privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data” or “ the purpose of inspections, investigations and audits”. This was provided there was no overriding public interest in disclosure.

Bavarian Lager was established in 1992 for the importation of German beer for public House and bars in the United Kingdom, situated primarily in the North of England.

However, Bavarian Lager was not able to sell its product, since a large number of publicans in the United Kingdom were tied by exclusive purchasing contracts obliging them to obtain their supplies of beer from certain breweries.

Under the Supply of Beer (Tied Estate) Order 1989 SI 1989/2390, British breweries holding rights in more than 2 000 pubs were required to allow the managers of those establishments the possibility of buying a beer from another brewery, on condition that it was conditioned in a cask and had an alcohol content exceeding 1.2% by volume. That provision was commonly known as the “Guest Beer Provision” (“the GBP”).

However, most beers produced outside the United Kingdom could not be regarded as “cask-conditioned beers”, within the meaning of the GBP, and thus did not fall within its scope.

Considering that the GBP constituted a measure having equivalent effect to a quantitative restriction on imports, and was thus incompatible with Art. 30 of the EC Treaty (now, after amendment, Art. 28 EC), Bavarian Lager lodged a complaint with the Commission by letter of 3 April 1993, registered under reference P/93/4490/UK.

Following its investigation, the Commission decided, on 12 April 1995, to institute proceedings against the United Great Britain and Northern Ireland under Art. 169 of the EC Treaty (now Art. 226 EC).

On 11 October 1996, the aforementioned meeting was held, which was attended by officers of the Directorate-General (DG) for the Internal Market and Financial Services, officials of the United Kingdom Government Department of Trade and Industry and representatives of the Confederation des Brasseurs du Marche Commun. Bavarian Lager had requested the right to attend the meeting [of 11 October 1996] in a letter dated 27 August 1996, but the Commission refused to grant permission to attend.

On 4 May 1998, Bavarian Lager addressed a request to the Commission under the Code of Conduct for access to all of the submissions made under file reference P/93/4490/UK by 11 named companies and organisations and by three defined categories of person or company. The Commission refused the initial application on the ground that the [said] Code of Conduct applied only to documents of which the Commission was the author. The confirmatory application was rejected on the grounds that the Commission was not the author of the document in question and that any application had to be sent to the author.

On 8 July 1998, Bavarian Lager complained to the European Ombudsman under reference 713/98/IJH, stating, by letter dated 2 February 1999, that it wished to obtain the names of the delegates of the CBMC who had attended the meeting on 11 October 1996 and the names of the companies and any persons who fell into one of the 14 categories identified in the original request for access to documents containing the communications to the Commission under file reference P/93/4490/UK.

 By e-mail of 5 December 2003, Bavarian Lager sent a request to the Commission for access to the documents referred to above, based on Regulation 1049/2001.

The Commission replied to that request by letter of 27 January 2004 stating that certain documents relating to the meeting of 11 October 1996 could be disclosed, but adding that five names had been blanked out from the minutes of the meeting of 11 October 1996, following two express refusals by persons to consent to the disclosure of their identity and the Commission’s failure to contact the remaining three attendees.

By the contested decision, the Commission rejected the confirmatory application of Bavarian Lager. It confirmed that Regulation 45/2001 applied to the request for disclosure of the names of the other participants. As Bavarian Lager had not established an express and legitimate purpose or needed for such a disclosure, the conditions set out by Art. 8 of that regulation had not been met and the exception provided for in Art. 4(1)(b) of Regulation 1049/2001 applied. It added that, even if the rules on the protection of personal data did not apply, it would nevertheless had had to refuse to disclose the other names under Art. 4(2), third indent, of Regulation 1049/2001 so as not to compromise its ability to conduct inquiries.”

By the judgment under appeal, the General Court annulled the contested decision.

Regarding access to the full minutes of the meeting of 11 October 1996, the General Court took the view, that Bavarian Lager’s request was based on Regulation 1049/2001.

Relationship between Regulation 45/2001 and Regulation 1049/2001

The Court of Justice of the European Union stressed that Regulation 45/2001 and 1049/2001 were adopted on dates very close to each other. They did not contain any provisions granting one regulation primacy over the other. In principle, their full application should be ensured.

The Court held that the only express link between those two regulations was established in Art. 4(1)(b) of Regulation 1049/2001, which provided for an exception to access to a document where disclosure would undermined the protection of privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

Where a request based on Regulation 1049/2001 sought to obtain access to documents including personal data, the provisions of Regulation 45/2001 become applicable in their entirety, including Arts 8 and 18 thereof by not taking account of the reference in Art. 4(1)(b) of Regulation 1049/2001 to the legislation of the Union concerning the protection of personal data and thus to Regulation 45/2001, the General Court dismissed at the outset, in paragraph 107 of the judgment under appeal, the application of Art. 8(b) of Regulation 45/2001, and, in paragraph 109 of the judgment under appeal, the application of Art. 18 of Regulation 45/2001. And yet those Articles constituted essential provisions of the system of protection established by Regulation 45/2001.

Consequently, in the view of the Court of Justice, the particular and restrictive interpretation which the General Court gave to Art. 4(1)(b) of Regulation 1049/2001 did not correspond to the equilibrium which the Union legislature intended to establish between the two regulations in question.

The Court of Justice held that the General Court was right to conclude that the list of participants in the meeting of 11 October 1996 appearing in the minutes of that meeting thus contained personal data for the purposes of Art. 2(a) of Regulation 45/2001, since the persons who participated in that meeting could be identified.

The Court held that, therefore, the decisive question was whether the Commission could grant access to the document including the five names of the participants in the meeting of 11 October 1996, in compliance with Art. 4(1)(b) of Regulation 1049/2001 and Regulation 45/2001.

First of all, it should be noted that Bavarian Lager was able to have access to all the information concerning the meeting of 11 October 1996, including the opinions which those contributing expressed in their professional capacity.

The Commission, at the time of the first request by Bavarian Lager dated 4 May 1998, sought the agreement of the participants at the meeting of 11 October 1996 to the disclosure of their names. As the Commission indicated in the decision of 18 March 2003, that procedure was in compliance with the requirements of Directive 95/46, in force at that time.

Following a new request by Bavarian Lager to the Commission, dated 5 December 2003, seeking communication of the full minutes of the meeting of 11 October 1996, the Commission informed Bavarian Lager on 27 January 2004 that, having regard to the entry into force of Regulation 45/2001 and 1049/2001, it was henceforward obliged to treat that request under the specific regime of those regulations, particularly Art. 8(b) of Regulation 45/2001.

Whether under the former system of Directive 95/46 or under the system of Regulation 45/2001 and 1049/2001, the Commission was right to verify whether the data subjected had given their consent to the disclosure of personal data concerning them.

The Court of Justice found that, by releasing the expurgated version of the minutes of the meeting of 11 October 1996 with the names of five participants removed therefrom, the Commission did not infringe the provisions of Regulation 1049/2001 and sufficiently complied with its duty of openness.

By requiring that, in respect of the five persons who had not given their express consent, Bavarian Lager establish the necessity for those personal data to be transferred, the Commission complied with the provisions of Art. 8(b) of Regulation 45/2001.

As Bavarian Lager had not provided any express and legitimate justification or any convincing argument in order to demonstrate the necessity for those personal data to be transferred, the Commission had not been able to weigh up the various interests of the parties concerned. Nor was it able to verify whether there was any reason to assume that the data subjected” legitimate interests might be prejudiced, as required by Art. 8(b) of Regulation 45/2001.

It followed from the above that the Commission was right to reject the application for access to the full minutes of the meeting of 11 October 1996.

Therefore, the General Court erred in law in concluding that in this case the Commission had wrongly applied Art. 4(1)(b) of Regulation 1049/2001 and held that Bavarian Lager had not established either an express and legitimate purpose in obtaining, or any needed to obtain, the document at issue in its entirety.

As the contested decision did not infringe the provisions of Regulation 45/2001 and 1049/2001, the action for annulment by Bavarian Lager against that decision must therefore be dismissed.

Text of Judgment

Joined Cases C-105/09 and C-110/09, Terre wallonne ASBL

Court clarifies scope of Strategic Environmental Assessment Directive  

  

By judgment of 22 September 2005 in Case C-221/03 Commission v Belgium [2005], the Court held that, by failing to adopt within the relevant time-limit the measures needed for the full and correct implementation of Directive 91/676, the Belgium had failed to fulfil its obligations under that directive.

In order to comply with that judgment, the Walloon Government adopted the contested order in pursuance of Art. 5 of Directive 91/676. That order amended Book II of the Environment Code, which formed the Water Code, as regards the sustainable management of nitrogen in agriculture.

Terre wallonne ASBL and Inter-Environnement Wallonie ASBL applied to the Conseil d’État for annulment of that order, claiming in particular that the programme which it contained was not subjected to an environmental assessment in accordance with Directive 2001/42.

The referring court is of the view that the possibility cannot be ruled out that action programmes such as the one referred to by Directive 91/676 are plans or programmes within the meaning of Directive 2001/42.

By its first question, the referring court is, in essence, asking the Court whether a programme for the management of nitrogen in agriculture such as the one at issue in the main proceedings is liable to constitute a plan or programme covered by Art. 3(2)(a) of Directive 2001/42.

The Court held that, as a result both of the characteristics they displayed and of the actual intention of the European Union legislature, action programmes are “plans and programmes” within the meaning of Directive 2001/42.

Furthermore, according to the Court, as regards the content of action programmes, it is apparent from Art. 5 of Directive 91/676, in conjunction with Annex III thereto, that those programmes are to contain specific, mandatory measures that cover, in particular, periods during which the spreading of certain types of fertiliser is prohibited, the capacity of storage vessels for livestock manure, spreading methods and the maximum quantity of livestock manure containing nitrogen which could be spread (see, to that effect, Case C-416/02 Commission v Spain [2005]).

 The Court held that in the context of environmental assessment provided for by Directive 85/337, the national authorities must take into account not only the direct effects of the planned works, but also the environmental impact liable to result from the use and exploitation of the end product of those works (Case C-2/07 Abraham and Others [2008], and Case C‑142/07 Ecologistas en Acción-CODA [2008]).

In particular, in the case of installations for intensive rearing, such an environmental assessment must envisage the impact of the installations on water quality (see, to that effect, Case C-121/03 Commission v Spain [2005]).

The Court therefore concluded was that an action programme adopted pursuant to Art. 5(1) of Directive 91/676 was in principle a plan or programme covered by Art. 3(2)(a) of Directive 2001/42 since it constituted a “plan” or “programme” within the meaning of Art. 2(a) of the latter directive and contained measures compliance with which was a requirement for issue of the consent that might be granted for carrying out projects lists in Annexes I and II to Directive 85/337.

Text of Judgment