The Court of Justice has handed down a controversial judgment in Case C-139/07 P Commission v. Technische Galswerke Ilmenau GmbH. It held that the EU institutions may refuse under Regulation 1049/2001 to grant members of the public access to documents concerning the review of State aids because of a general presumption that disclosure of those documents would undermine investigation activities. Rather oddly, it held that such a general presumption may arise from the fact that the specific procedures applicable to the review of State aid allow only a very limited access to the documents on the file to the Member state granting the aid.
The facts are rather specific to this case and may be the source of the trouble. In December 1998, Germany notified the Commission of various measures designed to give financial aid to Technische Glaswerke Ilmenau (TGI). The Commission adopted a decision on June 12 2001 finding that the financial assistance granted constituted State aid incompatible with the common market. TGI brought an action for the annulment of that decision which was dismissed.Then, in July 2001, the Commission opened a second formal investigation procedure in relation to aid granted by Germany to TGI, particularly a bank loan. In March 2002, TGI applied under Regulation 1049/2001 for access to all the documents in the Commission's files regarding State aid cases concerning TGI. By decision of May 28 2002, the Commission rejected the request for access, on the ground that disclosure of those documents would be likely to undermine the protection of the purposes of inspections and investigations, invoking the exception to the right of access laid down in Article 4(2), third indent, of Regulation No 1049/2001.
TGI brought an action before the Court of First Instance seeking annulment of that Commission decision.
In its judgment in Case T-237/02 Technische Galswerke Ilmenau GmbH v. Commission  ECR II-5131, the General Court annulled the decision refusing access holding that the Commission had failed to examine each document covered by the request for access in a concrete, individual manner.
The Commission then appealed that judgment in this case.
The Court of Justice's judgment on appeal is interesting because it highlights the relationship between particular rules on access to file that may - or not - be contained in specific procedural regulations, such as Regulation 659/1999, and the general right of the public to have access to documents under Regulation 1049/2001.
The Court recalled that having been adopted on the basis of Article 255(2) EC, Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions. But that right of access is subject to certain limits based on reasons of public or private interest. It also recalled that in order to justify refusal of access to a document the disclosure of which has been requested, it is insufficient, in principle, for that document to fall within an activity mentioned in Article 4(2) of Regulation No 1049/2001. The institution concerned must also supply explanations as to how access to that document could specifically and effectively undermine the interest protected by an exception laid down in that article (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council  ECR I‑4723, paragraph 49). (See our post on that case here).
The Court went on that it has acknowledged that the EU institution can in principle to base its decisions in that regard 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 (Sweden and Turco, paragraph 50).
But where does such a presumption come from ? As regards procedures for reviewing State aid, such general presumptions may arise from Regulation No 659/1999 and from the case-law concerning the right to consult documents on the Commission’s administrative file. Regulation No 659/1999, and its Article 20, do not lay down any right of access to documents in the Commission’s administrative file for interested parties in the context of the review procedure opened in accordance with Article 108(2) TFEU.
By contrast, holds the Court, Article 6(2) of Regulation 659/1999 provides that comments received by the Commission in the context of the said review procedure are to be submitted to the Member state concerned, the latter then having the opportunity to reply to those comments within a given time-limit. The procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible for granting the aid, and the Commission cannot, 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  ECR I-7869, paragraph 81).
The Court then draws the conclusion that the interested parties, except for the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file. Account must be taken of that fact for the purposes of interpreting the exception laid down by Article 4(2), third indent, of Regulation No 1049/2001. If those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to the documents in the Commission’s administrative file, the system for the review of State aid would be called into question.
In a paragraph that must surely be described as weird, the Court held:
"It is true that the right to consult the administrative file in the context of a review procedure, opened in accordance with Article 88(2) EC, and the right of access to documents, pursuant to Regulation 1049/2001 are legally distinct, but the fact remains that they lead to a comparable situation from a practical point of view. Whatever the legal basis on which it is granted, access to the file enables the interested parties to obtain all the observations and documents submitted to the Commission, and, where appropriate, adopt a position on those matters in their own observations, which is likely to modify the nature of such a procedure."
And thus concludes that for the purposes of interpreting the exception laid down in Article 4(2), third indent, of Regulation 1049/2001, the General Court should, in the judgment under appeal, have taken account of the fact that interested parties other than the Member state concerned in the procedures for reviewing State aid do not have the right to consult the documents in the Commission’s administrative file, and, therefore, have acknowledged the existence of a general presumption that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities.
The problem with this judgment is that the applicant requesting the documents under Regulation No 1049/2001 was an "interested party" in the State aids procedure (in fact the beneficiary of the aid) and thus had very limited access to the file under Regulation 659/1999. The Court seems to want to prevent interested parties improving their position in a round about way by using the public access rules in Regulation 1049/2001. But under Regulation 1049/2001 anyone, including interested parties, have a general right to obtain documents and need not plead any special interest in seeking them.