Contents
Judgment of the General Court (Sixth Chamber)21 September 2016note(Access to documents — Regulation (EC) No 1049/2001– Documents relating to a call for tenders for a public services contract — Refusal of access — Exception relating to the privacy and integrity of the individual — Exception relating to the protection of commercial interests — Exception relating to the protection of the decision-making process — Partial access — Overriding public interest — Obligation to state reasons)In Case T‑363/14,Secolux, Association pour le contrôle de la sécurité de la construction, established in Capellen (Luxembourg), represented by N. Prüm-Carré and E. Billot, lawyers,vEuropean Commission, represented by A. Buchet and M. Konstantinidis, acting as Agents,THE GENERAL COURT (Sixth Chamber),composed of S. Frimodt Nielsen, President, A.M. Collins (Rapporteur) and V. Valančius, Judges,Registrar: G. Predonzani, Administrator,having regard to the written part of the procedure and further to the hearing on 30 June 2016,gives the following
Judgment
Background to the dispute
1On 13 August 2013, the European Commission published in the Supplement to the Official Journal of the European Union (OJ 2013/S 156-271471) a contract notice concerning a call for tenders under reference 02/2013/OIL in respect of safety checks to be made in various buildings in Luxembourg, which was divided into two lots. An amendment notice deferring the deadline for receiving tenders from 19 September 2013 to 8 October 2013 (OJ 2013/S 184-316785) was published on 21 September 2013.
2On 8 October 2013, the applicant, Secolux, Association pour le contrôle de la sécurité de la construction, submitted a tender for Lot No 1 and Lot No 2.
3On 3 December 2013, the Commission informed the applicant that its tenders had been rejected on the ground that they were not the most economically advantageous and that the contract had been awarded to other tenderers. It also informed the applicant that, for each of the two lots, the characteristics and advantages relating to the successful bid and the tenderer’s name could be sent to it on written request.
4By letter of 4 December 2013, the applicant made such a request.
5On 11 December 2013, the Commission provided the applicant with the relevant information.
6On 18 December 2013, the applicant requested further information, on the ground that the prices mentioned in the bids of the successful tenderers appeared to be abnormally low. It also requested suspension of the signature of the contracts relating to those bids.
7On 24 December 2013, an award notice concerning the two lots in the call for tenders was published in the Supplement to the Official Journal of the European Union (OJ 2013/S 249-433951).
8On 29 January 2014, the applicant asked the Commission, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), for a copy of the documents relating to the award procedure for the contract for Lot No 1, including, in particular, the evaluation report and, second, the successful bid or, at least, its price schedule.
9On 30 January 2014, the Commission informed the applicant that, since it had not received any submissions concerning the award procedure within 10 days of the date of notification of the decision rejecting the applicant’s bid, it had signed the contracts on 16 December 2013. It also provided further information concerning the differences between the prices proposed by the applicant and those proposed by the successful tenderer.
10On 3 February 2014, the applicant brought an action seeking, first, the annulment of the Commission decision rejecting its tender for Lot No 1 and, second, a claim for compensation for loss suffered as a result of that decision. That action gave rise to the judgment of 8 October 2015, Secolux v Commission (T‑90/14, not published, EU:T:2015:772).
11On 11 February 2014, the Commission responded to the request for access. First, it granted partial access to the evaluation report for Lot No 1, with the exception of personal data mentioned therein and the parts of the document not covered by the request for access concerning Lot No 2. However, it did not specify the parts in respect of which access had been refused pursuant to the exception, and those which merely fell outside the scope of the request for access. Second, it refused to give access to the successful tenderer’s bid or its price schedule, on the ground that those documents contained sensitive commercial information about that undertaking.
12On 3 March 2014, the applicant submitted a first confirmatory request for access to the documents. In particular, it requested access to Section 6 of the evaluation report, entitled ‘compliance with the tender specifications’, which contained certain questions put to a tenderer, and the successful bid or, at least, its price schedule. Furthermore, it requested access to the contract concluded with the successful tenderer.
13On 20 March 2014, the Commission informed the applicant that its request for access to the contract with the successful tenderer was not part of the original request and, therefore, that it had been processed separately as an initial request. It allowed partial access to the text of the contract, but refused access to certain passages in order to ensure the protection of personal data, and refused access to all of Annexes I.A and II to the contract (containing respectively the price schedule and the successful bid) in order to ensure the protection of sensitive commercial information relating to the successful tenderer.
14On 1 April 2014, the Commission adopted a decision on the first confirmatory request (‘the decision of 1 April 2014’), by which it refused to extend access beyond that already granted. According to that decision, as regards the evaluation report, the successful tenderer’s bid and its price schedule, that refusal was based on the protection of personal data (Article 4(1)(b) of Regulation No 1049/2001), the protection of commercial interests (Article 4(2), first indent, of that regulation) and protection of the decision-making process (Article 4(3) thereof). With respect to the evaluation report, the Commission again failed to specify, at that stage, which parts were covered by the exception relating to personal data and which parts concerned Lot No 2 and, therefore, were not covered by the request for access.
15On 2 April 2014, the applicant presented a second confirmatory request, seeking access to the whole contract.
16On 14 April 2014, the Commission adopted a decision on the second confirmatory request (‘the decision of 14 April 2014’), by which it refused to extend access beyond that already granted, relying on the same grounds as those in the decision of 1 April 2014.
Procedure and forms of order of the parties
17By application lodged at the Registry of the General Court on 2 June 2014, the applicant brought the present action claiming that the Court should:— annul the decision of 1 April 2014 and the decision of 14 April 2014 (‘the contested decisions’);— order the Commission to pay the costs.
18The Commission contends that the Court should:— dismiss the action as unfounded;— order the applicant to pay the costs.
19Upon hearing the report of the Judge-Rapporteur, in the context of the measures of inquiry in the procedure provided for in Article 91(c) of the Rules of Procedure of the General Court, the Court ordered the Commission to produce full copies of the documents in respect of which access had been refused. The Commission complied with that request within the period prescribed. In accordance with Article 104 of the Rules of Procedure, those documents were not communicated to the applicant.
20Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties, requesting them to reply before the hearing.
21The parties presented oral argument and replied to the Court’s oral questions at the hearing on 30 June 2016.
Law
22In support of its action, the applicant raised three pleas in law alleging, first, that the Commission failed to take a decision on all the documents requested, second, infringement of Article 4 of Regulation No 1049/2001 and, third, infringement of Article 296 TFEU.
23Since the applicant has withdrawn the first plea, there is no longer any need to examine it.
The second plea: infringement of Article 4 of Regulation No 1049/2001
24By the second plea, the applicant claims that the contested decisions infringe Article 4 of Regulation No 1049/2001. That plea is divided into five parts: first, the protection of personal data, within the meaning of Article 4(1)(b) of Regulation No 1049/2001, is not undermined; second, the protection of commercial interests, within the meaning of Article 4(2), second indent of that regulation, is not undermined; third, the protection of the decision-making process, within the meaning of Article 4(3) thereof, is not undermined; fourth, the existence of an overriding public interest in disclosure, within the meaning of Article 4 of that regulation and, fifth, infringement of Article 4(6) of that regulation on account of the refusal to give partial disclosure of the documents referred to.
First part of the second plea: protection of personal data not undermined
25It is clear from Article 4(1)(b) of Regulation No 1049/2001 that the institutions are to refuse access to a document if its disclosure would undermine the protection of the privacy or integrity of the individual, in particular in accordance with EU legislation regarding the protection of personal data. In the present case, the relevant legislation is based, inter alia, on Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).
26As is clear from the case-law, when examining the relationship between Regulations Nos 1049/2001 and 45/2001, for the purpose of applying the exception under Article 4(1)(b) of Regulation No 1049/2001 to the case in point, it must be borne in mind that those regulations have different objectives. The first regulation is designed to ensure the greatest possible transparency of the decision-making process of public authorities and of the information on which they base their decisions. It is thus designed to facilitate as far as possible the exercise of the right of access to documents, and to promote good administrative practices. The second is designed to ensure the protection of the freedoms and fundamental rights of individuals, particularly their private life, in the handling of personal data (judgment of 29 June 2010, Commission v Bavarian Lager, C‑28/08 P, EU:C:2010:378, paragraph 49).
27Regulations Nos 45/2001 and 1049/2001 were adopted on dates very close to each other. They do not contain any provisions granting one regulation primacy over the other. In principle, therefore, their full application should be ensured (judgment of 29 June 2010, Commission v Bavarian Lager, C‑28/08 P, EU:C:2010:378, paragraph 56).
28Under Article 2(a) of the Regulation No 45/2001, ‘personal data’ means any information relating to an identified or identifiable natural person. An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity.
29According to recital 7 of Regulation No 1049/2001, the persons to be protected are those whose personal data are processed by EU institutions or bodies in any context whatsoever, for example because they are employed by those institutions or bodies.
30Furthermore, there is no reason of principle to justify excluding activities of a professional nature from the notion of private life (judgments of 20 May 2003, Östereichischer Rundfunk and Others, C‑465/00, C‑138/01 and C‑139/01, EU:C:2003:294, paragraph 73, and of 8 November 2007, Bavarian Lager v Commission, T‑194/04, EU:T:2007:334, paragraph 114).
31In the present case, it is clear from its pleadings and the documents provided, by way of the measure of inquiry ordered by the Court, that the Commission relied on the protection of personal data in order to refuse access to certain passages containing the family names and first names of employees of the tenderers and members of the selection committee, their signature and their functions. Therefore, the Commission was right to consider that that information constituted personal data.
32As the decision of 1 April 2014 states, in accordance with Article 8(b) of Regulation No 45/2001, personal data may be transferred to recipients, such as the applicant, only if they establish the necessity of having the data transferred and if there is no reason to assume that the data subject’s legitimate interests might be prejudiced.
33Since the applicant has 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 rightly refused access to the personal data at issue (see, to that effect, judgment of 29 June 2010, Commission v Bavarian Lager, C‑28/08 P, EU:C:2010:378, paragraph 78).
34It is only at the stage of the reply that the applicant submits for the first time that, pursuant to the case-law and in particular to paragraph 216 of the judgment of 9 September 2009, Brink’s Security Luxembourg v Commission (T‑437/05, EU:T:2009:318), the Commission should have given it access to the passage of the evaluation report containing person data of members of the evaluation committee.
35In that connection, it must be observed that the judgment of 9 September 2009, Brink’s Security Luxembourg v Commission (T‑437/05, EU:T:2009:318), relied on by the applicant is prior to the judgment of 29 June 2010, Commission v Bavarian Lager (C‑28/08 P, EU:C:2010:378). It is in the latter judgment that the Court set out the rules according to which the EU institutions were to examine requests for access to documents including personal data. Furthermore, asked about the case-law at the hearing, the applicant recognised the primacy of the judgment of 29 June 2010, Commission v Bavarian Lager (C‑28/08 P, EU:C:2010:378).
36In that context, it must be stated that whoever requests such a transfer of personal data must first establish that it is necessary. If it is demonstrated to be necessary, it is then for the institution concerned to determine that there is no reason to assume that that transfer might prejudice the legitimate interests of the data subject (judgment of 16 July 2015, ClientEarth and PAN Europe v EFSA, C‑615/13 P, EU:C:2015:489, paragraph 47).
37In that connection, it must be stated that, even if an unsuccessful tenderer may be able in principle to put forward legitimate reasons for having access to the names of members of the selection committee for the public contract concerned, the applicant did not put forward any argument justifying that request before the adoption of the contested decisions. Furthermore, even in the present proceedings, it has not put forward any detailed argument to that effect. In those circumstances, the applicant’s claim regarding access to passages of the evaluation report which contain personal data relating to the identity of members of the selection committee, that is the passages in the middle of page 6 and Annex No 1 to the evaluation report, must be dismissed.
38As far as concerns the other non-disclosed passages of the evaluation report, including the questions put to a tenderer, in Section 6 of the report, namely the passages on pages 2, 3, 4, 5, at the beginning and end of page 6 and Annex No 2 to the evaluation report, they concern Lot No 2 and, therefore, are not covered by the scope of the request for access. Furthermore, although the Commission could have helped the applicant to better understand the decision of 1 April 2014 if it had specified the parts of the evaluation report covered by the protection of personal data and those concerning Lot No 2, it has not infringed any legal obligation by acting as it has in the present case.
39In view of the foregoing, the first part of the second plea must be rejected.
Second part of the second plea: protection of commercial interests
40The applicant claims that the Commission incorrectly concluded that there was a risk that the protection of commercial interests would be undermined, within the meaning of Article 4(2), first indent, of Regulation No 1049/2001.
41As a preliminary point, it must be observed that, in the examination of the second part of the second plea, it is only necessary to examine whether the Commission could base its arguments on the protection of commercial interests in order to refuse access to the successful tenderer’s bid, including the price schedule and Annexes I.A and II to the contract. As is clear from the findings of the Court on the first part of the second plea, the Commission did not commit any error by granting partial access to the evaluation report and the text of the contract, because the disclosure of certain passages was likely to undermine the protection of personal data, while other passages concerned Lot No 2 and therefore fell outside the scope of the request for access.
42In the contested decisions, the Commission relies on Article 4(2), first indent, of Regulation No 1049/2001 and Article 113 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) (‘the Financial Regulation’).
43It follows from the case-law that Regulation No 1049/2001 and the Financial Regulation have different objectives and do not contain any provision expressly giving one regulation primacy over the other. Therefore, it is appropriate to ensure that each of those regulations is applied in a manner which is compatible with the other and which enables a coherent application of them (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 85).
44Specifically as regards the application of Regulation No 1049/2001, that regulation is intended to give the fullest possible effect to the right of public access to documents of the institutions (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 87).
45However, that right is nonetheless subject to certain limitations based on grounds of public or private interest. Nevertheless, since they derogate from the principle of the widest possible public access to documents of the EU institutions, those exceptions must be interpreted and applied strictly (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraphs 88 and 89).
46If the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually undermine the interest protected by an exception provided for in Article 4 of Regulation No 1049/2001 upon which it is relying. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical. However, it is open to that institution to base its decisions in that regard on general presumptions which apply to certain categories of documents, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 90).
47It is clear from the case-law that the bids submitted by tenderers in a call for tenders may fall within the scope of the exception relating to the protection of commercial interests, on account of the economic and technical information contained in those bids (see, to that effect, judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 95).
48Furthermore, the protection of tenderers’ bids vis-à-vis other tenderers is consistent with the relevant provisions of the Financial Regulation, in particular Article 113(2) thereof, which does not provide for the disclosure of the tenders submitted, even after written application by the unsuccessful tenderers. That restriction is integral to the objective of EU rules on public procurement, which is based on undistorted competition. In order to attain that objective, it is important that the contracting authorities do not release information relating to contract award procedures which could be used to distort competition, whether in an ongoing procurement procedure or in subsequent procedures (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 100).
49In the light of the foregoing, the case-law has established the existence of a general presumption according to which that access to the bids submitted by tenderers would, in principle, undermine the interest protected (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 101).
50However, it must be stated that the general presumption referred to in paragraph 49 above does not exclude the possibility of demonstrating that a given document disclosure of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned (judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 126).
51It is in the light of those principles that the present case falls to be considered.
52First, it must be observed that, in the present case, the applicant was refused access to the bid submitted by the successful tenderer including the price schedule and the price schedule summary. Furthermore, Annex I.A to the contract, to which access was also refused in its entirety by the Commission, also consists of the successful tenderer’s price schedule. As to Annex II to the contract, to which access was also refused, it contains the successful tender. Therefore, those documents are of exactly the same type as those referred to by the judgment of 29 January 2013, Cosepuri v EFSA (T‑339/10 and T‑532/10, EU:T:2013:38). Contrary to the applicant’s arguments, it cannot be inferred from that judgment that it concerns only a request for access to all the tenderers’ bids, and not a request for access only to the successful tenderer’s bid.
53It is clear that the documents referred to by the present request for access, by their nature, may contain confidential technical and economic information about the successful tenderer, in particular information on the competences and working methods, its know-how, its internal organisation, its costs and proposed prices.
54In those circumstances, the Commission rightly considered, in the contested decisions, that the successful tenderer’s bid, including the price schedule, Annex I.A to the contract, containing the price schedule and Annex II to the contract, containing the successful tenderer’s bid, were covered by a general principle according to which their disclosure would, in principle, undermine the protection of commercial interests.
55Furthermore, it must be stated that, specifically in order to maintain the confidentiality of that sensitive commercial information, Article 113(2) of the Financial Regulation does not provide for communication of the successful tenderer’s bid to unsuccessful tenderers, and even states that it is possible to omit the communication of certain information where it would undermine legitimate business interests or could distort fair competition.
56Second, it must be stated that at no stage in the proceedings did the applicant put forward any argument to show that the documents requested were not covered by the abovementioned presumption.
57As far as concerns the price schedule as a whole, the applicant submits that the disclosure of that document would not undermine the successful tenderer’s commercial interests because the award notice indicated the price level of its offer. That argument cannot be accepted as the price schedule is a much more detailed document, setting out item by item the price of the services proposed, while the award notice merely gives the overall value of the contract awarded.
58The same is true for the summary price schedule in the Annex to the tender. It must be held that that document also contains information relating to the price of the services proposed which is more detailed than the information disclosed by the award notice. Therefore the summary price schedule is also covered by the abovementioned presumption.
59It follows that the Commission was entitled to take the view that the documents at issue, that is the successful tenderer’s bid, the price schedule, the summary price schedule and Annexes I.A and II to the contract were covered by the exception relating to the protection of commercial interests, without carrying out a specific and individual examination, which the applicant claims it should have made.
60As far as concerns the applicant’s arguments relating to existence of an alleged overriding public interest justifying the disclosure, they will be examined under the fourth part below.
61Finally, as regards the applicant’s argument that the information provided to it by the Commission concerning the successful bid price do not meet the requirements of Article 113 of the Financial Regulation, even if it were admissible, it must be stated that, contrary to the applicant’s suggestion, Article 113(2) of the Financial Regulation does not lay down any obligation to notify an unsuccessful tenderer, in relation to the characteristics and relative advantages of the successful bid, of detailed information concerning the prices.
62In view of the foregoing, the second part must be rejected.
Third part of the second plea: decision-making process not undermined
63The applicant claims that the Commission wrongly based its decision on the exception based on the protection of the decision-making process in order to refuse access to certain documents, pursuant to Article 4(3) of Regulation No 1049/2001.
64In that regard, it must be recalled that, according to settled case-law, a single document may be covered by one or several exceptions provided for by Regulation No 1049/2001 (judgment of 10 September 2008, Williams v Commission, T‑42/05, not published, EU:T:2008:325, paragraph 126). It is clear from the foregoing that the Commission did not commit any error holding that, under Article 4(1)(b) of that regulation, the disclosure of the whole evaluation report and the text of the contract signed with the successful tenderer would undermine the protection of personal data and that the disclosure of the tenderer’s bid including the price schedule and Annexes I.A and II to the contract, would undermined the protection of commercial interests, under Article 4(2), first indent, of that regulation.
65Those exceptions, which the Court held were well founded, covering the documents to which access was completely refused and the redacted parts of the documents requested, for reasons of procedural efficiency, it is unnecessary to examine whether the applicant’s pleas concerning the exception relating to the protection of the decision-making process are well founded as they are irrelevant (see, to that effect, order of 27 November 2012, Steinberg v Commission, T‑17/10, not published, EU:T:2012:625, paragraph 89).
Fourth part: existence of an overriding reason of public interest
66The applicant submits that, despite the risk of undermining the protection of business secrets, there is an overriding public interest justifying the disclosure, within the meaning of the last sentence of Article 4(2) of Regulation No 1049/2001.
67As stated above, it is clear from the case-law that the application of a general presumption, like the presumption that commercial interests will be undermined in the present case, does not exclude the possibility of showing that there is an overriding public interest justifying the disclosure (judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 126).
68It is, however, for the party requesting access to refer to specific circumstances to establish an overriding public interest which justifies the disclosure of the documents concerned (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 94, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 90).
69In that regard, it is true that the overriding public interest which may justify the disclosure of a document need not necessarily be distinct from the principles which underlie Regulation No 1049/2001 (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 92, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 92).
70However, general considerations cannot be accepted in order to justify access to the documents requested (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 93, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 93).
71With respect to the present case, it must be stated that, in its confirmatory requests, the applicant merely relied on the principle of transparency, adding that there is a discrepancy between the amount indicated in the award notice and the amount of the successful tenderer’s bid. According to the confirmatory requests, disclosure of the documents requested is necessary in order to enable the applicant to verify the amount for which the contract was awarded.
72In that connection, it must be recalled that, on the date of the decision of 1 April 2014, the applicant had already brought its action for annulment against the decision rejecting its bid. In that case it argued, inter alia, that the award of the contract for an amount greater than that of the successful tenderer’s bid constituted an irregularity, as is clear from paragraph 19 of the judgment of 8 October 2015, Secolux v Commission (T‑90/14, not published, EU:T:2015:772). In those circumstances, it must be held that the interest relied on by the applicant is a private, not public, interest.
73According to settled case-law, the fact that the documents requested may be necessary for the applicant in order to argue its case in an action constitutes a private interest. Therefore, since the applicant requested access to the documents at issue in order to enable it to present more convincing arguments in its action for annulment, that cannot constitute an overriding public interest justifying disclosure (see, to that effect, judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraphs 142 and 146, and judgment of 20 March 2014, Reagens v Commission, T‑181/10, not published, EU:T:2014:139, paragraph 142).
74The applicant does not put forward any detailed argument in support of its reliance on the general principle of transparency. Therefore, as regard the principles of proportionality and that of equal treatment and non-discrimination, the applicant, apart from the fact that it did not rely on that principle in its confirmatory requests to justify the existence of an overriding public interest, merely mentions them without putting forward any specific arguments.
75Having regard to the foregoing, it must be concluded that the applicant has failed to show the existence of an overriding public interest justifying the disclosure of the documents at issue under Article 4(2), final clause, of Regulation No 1049/2001.
76Therefore, the fourth part of the second plea must be rejected.
Fifth part of the second plea: refusal of partial disclosure
77The applicant claims that the contested decisions infringe Article 4(6) of Regulation No 1049/2001, in so far as they refuse to grant partial access to certain documents requested. According to the applicant, the Commission should have carried out a specific examination, for each document, of the reasons for which partial disclosure was not possible.
78Pursuant to Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of those exceptions, the remaining parts of the document are to be released.
79In that connection, first, it must be held that the Commission has granted partial access to the evaluation report and the text of the contract concluded with the successful tenderer and the applicant has failed to put forward any argument from which it may be concluded that it should have given access to other parts of those documents. In that connection, it must be recalled, as stated in paragraph 38 above, that the Commission has not given access to Section 6 of the evaluation report because it concerns Lot No 2, which is not covered by the application.
80Second, as regards the successful tenderer’s bid, including the price schedule, either in its full version or the summary form, and Annexes I.A and II to the contract, it is clear from the case-law that the general presumption referred to in paragraphs 52 to 54 of the present judgment has the effect that the documents covered by it do not fall within an obligation of disclosure, in full or in part, of their content (see, to that effect, judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 133).
81Therefore, the fifth part of the second plea must be rejected and, therefore, the second plea must be rejected in its entirety as unfounded.
Third plea: infringement of Article 296 TFEU
82By way of preliminary observation, the Court observes that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent EU Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 10 September 2008, Williams v Commission, T‑42/05, EU:T:2008:325, paragraph 94; of 7 July 2011, Valero Jordana v Commission, T‑161/04, not published, EU:T:2011:337, paragraph 48, and of 15 July 2015, Dennekamp v Parliament, T‑115/13, EU:T:2015:497, paragraph 136).
83In the case of a request for access to documents, where the institution in question refuses such access, it must demonstrate in each individual case, on the basis of the information at its disposal, that the documents to which access is sought do indeed fall within the exceptions listed in Regulation No 1049/2001 (judgments of 10 September 2008, Williams v Commission, T‑42/05, EU:T:2008:325, paragraph 94, and of 7 July 2011, Valero Jordana v Commission, T‑161/04, not published, EU:T:2011:337, paragraph 49). It is therefore for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the document requested does in fact fall within the sphere covered by the exception relied on and, second, whether the need for protection relating to that exception is genuine.
84The present case must be examined in the light of those principles.
85First, as regards the complaint based on the failure to state reasons concerning the protection of privacy, it must be held that the contested decisions explain, to the requisite legal standard, the reasons for which certain passages of the evaluation report and the contract signed by the successful tenderer could not be disclosed in order to protect personal data.
86There is no factual basis for the applicant’s arguments concerning Section 6 of the evaluation report, as the Commission explained in its pleadings and as is clear from the examination of that document by the Court, that section concerns Lot No 2 which is not covered by the request for access.
87In that connection, as stated in paragraph 38 above, even though the Commission could have done more to help the applicant to understand the contested decisions by specifying the parts of the documents covered by the protection of personal data and those concerning Lot No 2, it must be observed that it has not breached the obligation to state reasons by acting as it has in the present case.
88The applicant’s argument concerning the successful tenderer’s bid must also be rejected, because the Commission did not base its decision on the protection of privacy in order to refuse access to that document.
89Second, as regards the protection of commercial interests, contrary to the applicant’s submissions, the contested decisions contain sufficient reasoning concerning the application of a general presumption of non-disclosure of the successful tender, including the price schedules and Annexes I.A and II to the contract, in order to ensure that protection.
90Third, for the same reasons as those set out in paragraphs 64 and 65 of the present judgment, it is unnecessary to examine whether the complaint based on a supposed failure to state reasons concerning the protection of the decision-making process in order to decide the present case, which is irrelevant.
91Fourth, as far as concerns the reasoning to the effect that an overriding public interest does not exist it must be observed that, in its confirmatory requests, the applicant merely relied on the principle of transparency in general terms, mentioning incidentally its interest in being able to verify the existence of a discrepancy between the award notice and the amount of the successful tenderer’s bid. In that connection, it is clear from the contested decisions that the Commission found in a succinct but clear manner that the applicant had not put forward any argument such as to establish the existence of an overriding public interest justifying disclosure. The Commission also added that it had been unable to identify any overriding public interest justifying disclosure. Furthermore, it should be noted that, in its initial decisions, the Commission explicitly stated on that point that the applicant’s interest in disclosure was of a private nature. In those circumstances, the argument based on a failure to state reasons with respect to the existence of an overriding public interest must be dismissed.
92Lastly, it must be added, with regard to the decision of 14 April 2014, that Annexes I.A and II to the contract contained the price schedule and the successful tenderer’s bid. For that reason, the decision of 14 April 2014 could legitimately refer to the reasoning of the decision of 1 April 2014, which had already reached a conclusion on the communication of that information.
93Accordingly, the fourth plea, alleging infringement of the obligation to state reasons, must be rejected as unfounded.
94The present action must therefore be dismissed in its entirety.
Costs
95Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
Operative part
On those grounds,THE GENERAL COURT (Sixth Chamber)hereby:
1.Dismisses the action;
2.Orders Secolux, Association pour le contrôle de la sécurité de la construction, to pay the costs.
Delivered in open court in Luxembourg on 21 September 2016.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.