15 December 2021 (*1)

(Access to documents – Regulation (EC) No 1049/2001 – ‘Horizon 2020’ Framework Programme for Research and Innovation (2014-2020) – Regulation (EU) No 1290/2013 – Documents concerning the research project ‘iBorderCtrl: Intelligent Portable Border Control System’ – Exception relating to the protection of the commercial interests of a third party – Partial refusal to grant access – Overriding public interest)

In Case T‑158/19,

Patrick Breyer, residing in Kiel (Germany), represented by J. Breyer, lawyer,

applicant,

European Research Executive Agency (REA), represented by S. Payan-Lagrou and V. Canetti, acting as Agents, and by R. van der Hout and C. Wagner, lawyers,

defendant,

APPLICATION based on Article 263 TFEU seeking the annulment of the decision of the REA of 17 January 2019 (ARES (2019) 266593) concerning partial access to documents,

THE GENERAL COURT (Tenth Chamber),

composed of A. Kornezov, President, E. Buttigieg (Rapporteur) and G. Hesse, Judges,

Registrar: L. Ramette, Administrator,

having regard to the written part of the procedure and further to the hearing on 5 February 2021,

gives the following

On 19 April 2016, the European Research Executive Agency (REA) concluded grant agreement No 700626 (‘the grant agreement’) with the members of a consortium in order to fund the ‘iBorderCtrl: Intelligent Portable Control System’ project (‘the iBorderCtrl project’) in the context of Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020) (‘the Horizon 2020 programme’) for a period of 36 months from 1 September 2016.

The REA describes the iBorderCtrl project as aiming at testing new technologies in controlled border management scenarios that could potentially increase the efficiency of the EU’s external borders management, ensuring faster processing for bona fide travellers and quicker detection of illegal activities. However, the REA notes that the project is not a technology development project targeting the actual implementation of a working system with real customers.

In the context of funding and implementing the project, the REA received from the members of the consortium certain documents relating to various stages of the development of the iBorderCtrl project, in accordance with the grant agreement.

On 5 November 2018, the applicant, Mr Patrick Breyer, submitted, 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), an application to the European Commission for access to several documents (‘the initial application’), first, those relating to authorisation of the iBorderCtrl project and, secondly, those drawn up in the course of that project. That application was registered on the same day under reference ARES (2018) 5639117 and was sent to the REA on 7 November 2018.

By letter of 23 November 2018 (‘the initial decision’), the REA informed the applicant that one of the requested documents was publicly accessible, that the REA was granting him partial access to another document requested and that it was rejecting his application for access to other documents drawn up in the course of the project, justifying the refusal to grant access by the application of the exceptions aimed at protecting, on the one hand, the privacy and the integrity of the individual within the meaning of Article 4(1)(b) of Regulation No 1049/2001, in so far as the requested documents contained non-public-domain personal data of persons involved in the project, and, on the other hand, the commercial interests of the members of the consortium, for the purposes of the first indent of Article 4(2) of that regulation.

6.6

On 26 November 2018, the applicant sent to the Commission a confirmatory application for access, registered as ARES (2018) 6073379 (‘the confirmatory application’), while accepting that the names of the natural persons involved in the project would be redacted from the documents at issue.

7.7

By decision of 17 January 2019 (ARES (2019) 266593), the REA granted the applicant partial access to other requested documents and rejected his application for access as to the remainder, relying on the protection of the commercial interests of the members of the consortium for the purposes of the first indent of Article 4(2) of Regulation No 1049/2001 and referring in particular to Article 3 of Regulation (EU) No 1290/2013 of the European Parliament and of the Council of 11 December 2013 laying down the rules for participation and dissemination in ‘Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020)’ and repealing Regulation (EC) No 1906/2006 (OJ 2013 L 347, p. 81) and to the grant agreement (‘the contested decision’).

The following table summarises the REA’s position with respect to the various requested documents drawn up in the course of the iBorderCtrl project (‘the requested documents’):

II. Procedure and forms of order sought

By application lodged at the Court Registry on 15 March 2019, the applicant brought the present action in which the Commission was formally designated as the defendant.

By separate document lodged at the Court Registry on 18 June 2019, the Commission raised a plea of inadmissibility pursuant to Article 130(1) of the Rules of Procedure of the General Court. By order of 12 November 2019, the Court decided that the party against whom the present action had been brought was not the Commission but the REA, and that there was therefore no need to rule on the plea of inadmissibility raised by the Commission.

11.11

By letter lodged at the Court Registry on 20 June 2020, the applicant submitted new offers of evidence and new evidence. The REA submitted its observations on these within the period prescribed.

By way of a measure of organisation of procedure adopted on 17 November 2020 under Article 89 of its Rules of Procedure, the Court invited the applicant to produce Annex 1 to the initial decision and to answer a written question. The applicant did not comply with that request within the period prescribed. Notwithstanding that non-compliance with the period prescribed, by decision of 10 December 2021, pursuant to Article 62 of the Rules of Procedure, the President of the Tenth Chamber of the General Court decided that the examination of the present case would be facilitated by the inclusion in the file of the documents submitted out of time. Accordingly, the applicant’s response and the requested document have been included in the file.

By order of 26 November 2020, adopted pursuant to Article 91(c) of the Rules of Procedure, the Court ordered the REA to produce copies of the grant agreement and confidential versions of all the documents connected with the confirmatory application to which full or partial access was refused. The REA complied with that request within the period prescribed. In accordance with Article 104 of the Rules of Procedure, those documents were not disclosed to the applicant.

On 17 February 2021, the oral part of the procedure was closed.

By letter lodged at the Court Registry on 23 March 2021, the applicant submitted documents. By order of 21 April 2021, the Court decided to reopen the oral part of the procedure in accordance with Article 113(2)(a) of the Rules of Procedure and, by decision of the same date, it decided to place in the file the documents lodged by the applicant on 23 March 2021 and to invite the REA to submit its observations on those documents. The REA submitted its observations within the period prescribed.

16.16

By decision of the Court of 16 June 2021, the oral procedure was again closed.

17.17

The applicant claims that the Court should:

–annul the contested decision;

–order the REA to pay the costs.

18.18

The REA contends that the Court should:

–dismiss the action;

order the applicant to pay the costs of the proceedings, including those relating to the submission of new offers of evidence and new evidence.

III. Law

In support of his action, the applicant relies on two pleas in law, the first alleging infringement of the first indent and the final phrase of Article 4(2) of Regulation No 1049/2001, and the second alleging infringement of Article 7(1) and Article 8(1) of that regulation.

In so far as the second plea concerns the scope itself of the application for access, it must be examined first.

The applicant argues that the REA infringed Article 7(1) and Article 8(1) of Regulation No 1049/2001 in that the initial decision and the contested decision covered only the requested documents drawn up in the course of the iBorderCtrl project, not those relating to the actual authorisation of the project in question, which were, however, also referred to in the application for access.

22.22

The applicant states in that regard that the confirmatory application expressly referred to the initial application in which he had referred to the documents relating to authorisation of the project in question, so that it was superfluous to list again in the confirmatory application each of the documents to which access had been requested. He argues that, in the absence of any partial withdrawal of the application for access, the REA could not assume that the confirmatory application no longer covered all the documents referred to in the initial application.

23.23

The REA notes that, in accordance with Article 8 of Regulation No 1049/2001, the contested decision referred to all the documents to which the applicant had requested access in his confirmatory application. Since that application did not refer to the documents relating to authorisation of the project in question, which were not already referred to or named in the initial decision or referred to in the statement of reasons for that decision, and since those documents were not mentioned, even indirectly, in the reasons for the confirmatory application, the REA presumed that those documents were not the subject matter of the confirmatory application. If the applicant had wished to extend his confirmatory application to those documents, he should have expressly referred to them in his confirmatory application. However, there is nothing to prevent the applicant from submitting an application for access relating to those documents in the future.

24.24

By the second plea, the applicant argues, in essence, that the REA did not fully examine the application for access in that it failed to take a position on that application in so far as it concerned the documents relating to authorisation of the iBorderCtrl project.

25.25

It is common ground between the parties that, in the initial application, the applicant had requested access, inter alia, to all the documents relating to authorisation of the iBorderCtrl project. It is also common ground that those documents were not referred to in the initial decision. Indeed, they are not included among the documents listed under heading A of the initial decision as falling within the scope of the initial application. Similarly, under heading B of the initial decision, concerning the examination of the application for access, the REA stated that it considered that the documents listed in Annex 1 to the initial decision were those which formed part of the initial application. However, the documents relating to authorisation of the iBorderCtrl project were not referred to in that annex. Moreover, the statement of reasons for the initial decision made no reference to those documents, which is expressly acknowledged by the REA. That decision systematically referred to the requested documents as previously defined in that decision, which did not include the documents relating to authorisation of the iBorderCtrl project.

26.26

In that regard, it should be recalled that the purpose of Regulation No 1049/2001, as stated in recital 4 and Article 1 thereof, is to give the public the fullest possible right of access to documents of the institutions, there being, in accordance with Article 6(1) of the regulation, no requirement to state reasons for the application in order to enjoy that right.

27.27

When an EU institution, body, office or agency is asked to disclose a document, it must assess, in each individual case, whether that document falls within the exceptions to the right of public access to documents of the institutions set out in Article 4 of Regulation No 1049/2001 (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 35).

28.28

Moreover, as stated in recital 13 of Regulation No 1049/2001, a two-stage administrative procedure applies, with the additional possibility of court proceedings or complaints to the European Ombudsman, in order to ensure that the right of public access to documents of the EU institutions is fully respected.

Similarly, according to the case-law, Articles 7 and 8 of Regulation No 1049/2001, by providing for a two-stage procedure, aim to achieve, first, the swift and straightforward processing of applications for access to documents of the institutions concerned and, second, as a priority, a friendly settlement of disputes which may arise (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 53).

30.30

It is apparent from paragraphs 25 to 29 above that the institution, body, office or agency concerned is required to carry out a full examination of all the documents referred to in the application for disclosure. Such a requirement applies, in principle, not only when dealing with a confirmatory application, within the meaning of Article 8 of Regulation No 1049/2001, but also when dealing with an initial application, within the meaning of Article 7 of that regulation (judgment of 22 May 2012, Internationaler Hilfsfonds v Commission, T‑300/10, EU:T:2012:247, paragraph 69).

31.31

However, it is clear from the elements highlighted in paragraph 25 above that, in the present case, the REA failed to decide on the initial application for access in so far as it concerned the documents relating to authorisation of the iBorderCtrl project in breach of its obligation to make a full examination of that application. Such an omission on its part clearly undermines the objectives pursued by Regulation No 1049/2001 of rapid and easy handling of applications for access and friendly settlement of disputes, as recalled in paragraph 29 above (see, to that effect, judgment of 22 May 2012, Internationaler Hilfsfonds v Commission, T‑300/10, EU:T:2012:247, paragraph 73).

32.32

The REA argues that it was for the applicant to refer expressly to the documents relating to authorisation of the iBorderCtrl project in his confirmatory application, failing which it could presume that those documents were not covered by that application.

33.33

In that regard, on the one hand, it is important to note that, in the confirmatory application for access, the applicant expressly stated that that application followed on from his initial application for access. There is nothing in the confirmatory application to suggest that the applicant withdrew his application for access to the documents relating to authorisation of the iBorderCtrl project. The applicant’s intention to apply again for access to all the documents referred to in the initial application is also apparent from the fact, emphasised by the applicant, that he expressly agreed to make further concessions following the initial decision, namely to accept that the personal data contained in the documents at issue be redacted. In those circumstances, the REA could not presume that, in the context of his confirmatory application, the applicant had withdrawn his request for access to the documents relating to authorisation of the iBorderCtrl project.

34.34

On the other hand, in so far as, by such an argument, the REA maintains, in essence, that the applicant should have expressly challenged in the confirmatory application the failure to decide, in the initial decision, on his application for access in so far as it concerned the documents relating to authorisation of the iBorderCtrl project, such an argument cannot succeed. Its failure to decide, in the initial decision, on part of the initial application for access had the consequence that the second stage of the procedure concerning the documents to which that failure relates was not initiated. A contrary approach, as proposed by the REA, would infringe the objectives referred to in Articles 7 and 8 of Regulation No 1049/2001, as recalled in paragraph 29 above.

35.35

Finally, it is indeed true that, as the REA maintains, a person may make a new application for access relating to documents to which he has previously been denied access and that such an application requires the institution concerned to examine whether the earlier refusal of access remains justified in the light of a change in the legal or factual situation which has taken place in the meantime (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraphs 56 and 57).

36.36

However, as is apparent from the case-law, a failure to give a decision in respect of part of an application for access cannot be equated with a refusal to grant access (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraphs 122 and 123). Consequently, such a possibility of submitting a new application for access cannot serve to remedy a failure by the institution concerned to examine fully the first application for access or constitute an argument for depriving the applicant of the possibility of bringing proceedings, a possibility available to the applicant under Article 8(3) of Regulation No 1049/2001 (see, to that effect, Opinion of Advocate General Kokott in Strack v Commission, C‑127/13 P, EU:C:2014:455, point 40).

It follows from all the foregoing considerations that the second plea must be upheld and the contested decision must be annulled in so far as the REA failed to decide on the application for access made by the applicant in that it sought to obtain access to documents relating to authorisation of the iBorderCtrl project.

38.38

The first plea is divided into two parts, the first part alleging no undermining of the protection of commercial interests, within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001, and the second part alleging the existence of an overriding public interest in disclosure of the documents at issue for the purposes of the final phrase of Article 4(2) of that regulation.

39.39

As a preliminary point, it is necessary to examine the admissibility, challenged by the REA, of the new evidence and the new offers of evidence submitted by the applicant in his letter of 20 June 2020 and of his complaint that the REA should have granted him at least partial access to the requested documents.

40.40

By letter filed at the Court Registry on 20 June 2020, the applicant submitted some extracts from websites as new evidence and submitted new offers of evidence consisting in references to those websites. In its observations of 9 July 2020 relating thereto, the REA submits, first, that that evidence and those offers of evidence are inadmissible because they were submitted out of time and the delay in their submission was not duly justified by the applicant. Secondly, the REA challenges the presentation of the facts proposed by the applicant on the basis of that evidence.

Pursuant to Article 85(3) of the Rules of Procedure, the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified. However, according to the case-law, evidence in rebuttal and the amplification of the offers of evidence submitted in response to evidence in rebuttal from the opposite party in the rejoinder are not covered by the time-bar laid down by that provision. That provision concerns offers of fresh evidence and must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (see, to that effect, judgment of 21 April 2004, M v Court of Justice, T‑172/01, EU:T:2004:108, paragraph 44; see also, to that effect and by analogy, judgment of 12 December 2018, Servier and Others v Commission, T‑691/14, under appeal, EU:T:2018:922, paragraph 1460 and the case-law cited). Moreover, it has previously been held that the late submission by a party of evidence or offers of evidence may be justified, in particular, where the belated production of evidence by the opposing party justifies the file being supplemented in order to ensure observance of the rule that the parties should be heard (judgment of 14 April 2005, Gaki-Kakouri v Court of Justice, C‑243/04 P, not published, EU:C:2005:238, paragraph 32).

42.In the present case, the evidence and offers of evidence submitted by the applicant in his letter of 20 June 2020 cannot be declared inadmissible on the ground that they were produced after the lodging of the rejoinder in breach of Article 85(3) of the Rules of Procedure. As the applicant states in his letter of 20 June 2020, that evidence and those offers of evidence are intended to respond to the REA’s argument in paragraph 17 of the rejoinder that only border guards and staff of the iBorderCtrl project could participate in the pilot testing for that project.

43.That conclusion cannot be undermined by the REA’s argument based on the fact that the applicant has already argued in the reply that anyone was able to participate in the pilot testing and that he therefore could, at that stage, have produced the evidence or made offers of evidence in support of that assertion.

44.The position expressed by the REA in paragraph 17 of the rejoinder is not apparent from the initial decision, the contested decision or the defence, with the result that the applicant, who only became aware of that view at the stage of the rejoinder, was not required to support his argument in the reply with evidence to the contrary.

45.Consequently, the time-bar rule in Article 85(3) of the Rules of Procedure does not apply to the evidence and offers of evidence submitted by the applicant in his letter of 20 June 2020, with the result that they are admissible.

Admissibility of the complaint alleging failure to grant partial access

46.The REA submits that the subject matter of the first plea, as set out in the application, is limited to an infringement of the first indent of Article 4(2) of Regulation No 1049/2001. Accordingly, the complaint alleging failure to comply with Article 4(6) of Regulation No 1049/2001, in that the REA did not grant at least partial access to the requested documents, relied on for the first time at the stage of the reply, is inadmissible.

47.The applicant argues that the complaint that the REA should have disclosed at least some of the requested documents is not new. On the one hand, it is not necessary for Article 4(6) of Regulation No 1049/2001 to be ‘cited separately’, since the REA itself disclosed the partially redacted documents at issue. On the other hand, the question of at least partial disclosure of the requested documents had already been raised at the application stage.

48.In that regard, it should be noted that, although for a complaint to be admissible it is not essential to refer expressly to a provision alleged to have been infringed, it must nevertheless be clear from the arguments as presented at the application stage that the applicant intended to claim such an infringement.

49.In the present case, as the applicant submits, several passages in the application must be understood as relating to a complaint implicitly but necessarily alleging infringement of Article 4(6) of Regulation No 1049/2001.

50.In paragraph 26 of the application, the applicant argued that various parts of the documents to which he had requested access could be disclosed without undermining the commercial interests of the consortium. Moreover, by arguing, in paragraph 28 of the application, relying on case-law, that the REA failed to examine in detail the requested documents in order to ascertain to what extent they contained essential new information which was not yet known, the applicant referred implicitly, but necessarily, to an obligation on the part of the REA to examine whether partial access to those documents could be granted on the basis that they contained publicly available information not constituting a compilation of such information worthy of protection under the first indent of Article 4(2) of Regulation No 1049/2001.

51.In those circumstances, the more detailed arguments presented in the reply must be regarded as constituting an amplification of the complaint alleging at least partial refusal of access to the requested documents, which was relied on at the application stage. The REA’s argument that that complaint is inadmissible must therefore be rejected.

The first part of the first plea, alleging no undermining of the protection of commercial interests

52.In their arguments relating to the first part of the first plea, the parties disagree, inter alia, on the issue of the application to the present case of Regulation No 1290/2013, of the clauses of the grant agreement and of Article 339 TFEU, an issue which must be examined at the outset.

The application in the present case of Regulation No 1290/2013, the clauses of the grant agreement and Article 339 TFEU

53.The applicant submits that the legal basis for examining the legality of the contested decision must be Regulation No 1049/2001, not Regulation No 1290/2013, the clauses of the grant agreement or Article 339 TFEU, which were also invoked by the REA in the contested decision in support of the refusal of access. In any event, according to the applicant, Regulation No 1290/2013 cannot take precedence over Regulation No 1049/2001 and it is not possible to derogate from the application of that regulation by means of a contract, such as the grant agreement.

54.The REA submits that the applicant incorrectly asserts that neither Regulation No 1290/2013 nor Article 339 TFEU is relevant for the purposes of assessing his application for access to the documents at issue. According to the REA, even if the more recent provisions of Regulation No 1290/2013 were not expressly identified as more specific as against Regulation No 1049/2001, the two regulations must be complied with and reconciled through being applied consistently, Regulation No 1290/2013, Article 3 thereof in particular, providing in that regard complementary and enhanced protection for access to documents falling within the scope of that provision. Moreover, the grant agreement contains provisions on confidentiality and access to documents created in the context of the iBorderCtrl project for the purposes of Article 3 of Regulation No 1290/2013. Accordingly, pursuant to Article 36.1 of the grant agreement, the requested documents, which were identified as ‘confidential’, could not be disseminated.

55.Under Article 2(3) of Regulation No 1049/2001, the provisions on public access to REA documents apply to all documents held by that agency, that is to say, all documents drawn up or received by it and in its possession in all its areas of activity. Moreover, although that regulation is intended to give the fullest possible effect to the right of public access to documents of the institutions, that right is nonetheless subject to certain limitations based on grounds of public or private interest (see, to that effect, judgments of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 88, and of 5 February 2018, Pari Pharma v EMA, T‑235/15, EU:T:2018:65, paragraph 39 and the case-law cited).

56.The system of exceptions laid down in Article 4 of Regulation No 1049/2001 is based on a balancing of the opposing interests in a given situation, that is to say, first, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case (see judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 63 and the case-law cited).

57.While the EU institution, body, office or agency concerned must provide explanations as to how access to a document, disclosure of which has been requested, could specifically and actually undermine the interest protected by an exception laid down in Article 4 of Regulation No 1049/2001, the Court of Justice has acknowledged that it is open to the EU institution, body, office or agency concerned 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 (see judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraphs 64 and 65 and the case-law cited).

58.In the contested decision, as a basis for the partial refusal of access to the requested documents, the REA relied on the protection of the commercial interests of the members of the consortium for the purposes of the first indent of Article 4(2) of Regulation No 1049/2001, but considered that the latter provision had to be interpreted in accordance with the confidentiality provisions contained in Article 3 of Regulation No 1290/2013 and Article 36 of the grant agreement relating to the iBorderCtrl project. Relying on the case-law of the EU Courts, the REA considered that Regulation No 1049/2001 and Regulation No 1290/2013 should therefore be applied in a manner which is compatible with each of those regulations and enables them to be applied consistently.

59.Article 3 of Regulation No 1290/2013, entitled ‘Confidentiality’, provides that data, knowledge and information communicated as confidential in the framework of an action is to be kept confidential, subject to the conditions established in the implementing agreements, decisions or contracts and taking due account of EU law regarding the protection of and access to classified information. The confidentiality of documents submitted to the REA in the context of the iBorderCtrl project is subject, inter alia, to the conditions laid down in the grant agreement, Article 36.1 of which stipulates that during implementation of the action and for four years after the 36-month period from the start of the action, the parties must keep confidential any data, documents or other material that is identified as confidential at the time it is disclosed. That period had not expired at the time of the applicant’s initial application.

60.It should be noted that, in the context of the present action, the REA submits that, since the specific objective of Article 3 of Regulation No 1290/2013 is to limit access by third parties to documents covered by that provision, documents identified as ‘confidential’ pursuant to Article 36.1 of the grant agreement could not be disseminated to a third party. According to the REA, where protection under Regulation No 1290/2013 and the grant agreement applies, the ‘supplementary’ or ‘enhanced’ protection thus established must be guaranteed, as otherwise there would be a risk of undermining the success of the funded projects. That success relies on the availability of researchers to participate in the projects, as that availability could be jeopardised if the documents submitted, often containing innovative solutions and commercially sensitive information, were at risk of being disclosed under Regulation No 1049/2001. The spirit and provisions of Regulation No 1290/2013 and of the grant agreement governing such ‘supplementary’ protection would be rendered meaningless if the public had access to documents concerning the project in question identified as confidential. The REA therefore states that it ‘presumed’ that the consortium’s documents identified as confidential, pursuant to Article 36.1 of the grant agreement, contained sensitive information, disclosure of which would undermine the commercial interests of the members of the consortium.

61.By such a line of argument, the REA implicitly, but necessarily, supports establishing a general presumption that documents communicated to the REA by a participant in an action as confidential within the meaning of Article 3 of Regulation No 1290/2013 and Article 36.1 of the grant agreement should not be disclosed to a third party without it being necessary to examine specifically whether one of the exceptions to the principle of transparency provided for by Regulation No 1049/2001 applied to those documents.

Moreover, by relying on the case-law relating to general presumptions of non-disclosure, the REA invites the Court to examine the application, in the present case, of such a general presumption based on Regulation No 1290/2013.

63.In that regard, it should be recalled that the application of the general presumption of confidentiality is optional for the EU institution, body, office or agency to which a request for access to documents is made (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 59 and the case-law cited).

64.Thus, even assuming that such a general presumption applied in the present case, it must be noted that, in the contested decision, the REA did not respond to the application for access to the documents at issue by relying on such a general presumption of confidentiality, but examined in a specific and individual manner whether, in particular in view of the protection conferred on those documents by Article 3 of Regulation No 1290/2013 and Article 36.1 of the grant agreement, the exception referred to in the first indent of Article 4(2) of Regulation No 1049/2001 should apply to them. Furthermore, the REA expressly acknowledged both in its written submissions and at the hearing, in response to a question from the Court, that it had carried out a specific and individual examination of the possibility of granting access to the requested documents.

65.Consequently, all the arguments by which the REA implicitly, but necessarily, asserts the existence of a general presumption of non-disclosure of the requested documents based on their confidential nature under Article 3 of Regulation No 1290/2013 and Article 36.1 of the grant agreement are ineffective.

66.However, contrary to what the applicant maintains, it does not follow from such a conclusion that only Regulation No 1049/2001 applies in the present case. It is clear from the case-law that, where regulations do not contain provisions expressly giving one regulation primacy over the other, it is necessary to ensure that each of the regulations is applied in a manner which is compatible with the other and enables them to be applied consistently (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 84 and the case-law cited).

67.In the present case, Article 3 of Regulation No 1290/2013 and Article 36.1 of the grant agreement lay down and implement the rule of confidentiality of information and documents relating to the project in question which have been identified as ‘confidential’, in the present case in Annex I to that agreement. While that regulation and the grant agreement provide for certain exceptions, in particular as regards making information available to EU institutions, bodies, offices and agencies and Member States in accordance with Article 4 of that regulation and Article 36.1 of that agreement, or relating to the obligation to disseminate results in accordance with Article 43(2) of that regulation and Article 29.1 and Article 29.2 of the grant agreement, they nevertheless preserve the principle of confidentiality of the information vis-à-vis the general public during the period laid down in the grant agreement.

68.Moreover, as is apparent from Article 38.2.1 of the grant agreement, the REA’s right to use the material, documents and information of recipients encompasses granting access in response to individual requests under Regulation No 1049/2001. However, in accordance with that provision, that right does not affect, inter alia, the confidentiality obligations laid down in Article 36 of the grant agreement, which continue to apply.

69.It follows that the REA was entitled to take into account, in the contested decision, the protection of confidentiality provided for in respect of the requested documents under Article 3 of Regulation No 1290/2013 and Article 36.1 of the grant agreement when carrying out the specific and individual examination of the requested documents in the light of the exception referred to in the first indent of Article 4(2) of Regulation No 1049/2001.

70.Contrary to the argument made by the applicant, Article 36.1(e) of the grant agreement, according to which, in essence, the obligations of confidentiality guaranteed under Article 3 of Regulation No 1290/2013 no longer apply if disclosure of the information is required by EU or national legislation, cannot be interpreted as meaning that the principle of access to documents resulting from Regulation No 1049/2001 necessarily prevails over the protection of the confidentiality of documents established by Regulation No 1290/2013. If the applicant’s view were adopted, it would have the consequence of rendering ineffective, in essence, the general obligation referred to in Article 3 of that regulation to ensure the confidential treatment of documents identified as such, which, in accordance with Article 18(3) of the same regulation, that agreement is meant to respect by establishing the rights and obligations of the parties. That said, Article 36.1(e) of the grant agreement reflects the need, recalled in paragraph 66 above, to ensure that Regulations No 1290/2013 and No 1049/2001 are applied in a manner which is compatible with the other and enables them to be applied consistently.

71.Accordingly, the fact that the documents submitted to the REA by a participant in an action, such as in the present case the members of the consortium, have been classified by the parties to the agreement as confidential is an indication for the REA, when it examines a third party’s application for access to those documents, that their content is sensitive from the point of view of the interests of that participant. However, the classification of the documents communicated to the REA as confidential in the context of a project is not sufficient to justify application of the exception set out in the first indent of Article 4(2) of Regulation No 1049/2001 and does not release the REA, in the context of the specific and individual examination of the application for access to those documents identified as ‘confidential’, from its obligation to examine whether they are covered partially or wholly by that exception (see, to that effect and by analogy, judgment of 4 May 2012, In’t Veld v Council, T‑529/09, EU:T:2012:215, paragraph 21 and the case-law cited).

72.Moreover, the diligent examination by the EU institution, body, office or agency of any request by a third party for access to documents under Regulation No 1049/2001, of the application of the exceptions referred to in Article 4 of that regulation in particular, is intended to ensure that a balance is struck between, on the one hand, the public’s right of access to those documents and, on the other hand, the protection of the legitimate interests of the persons concerned, so that the REA’s concerns that the application of Regulation No 1049/2001 to documents communicated to it as confidential would deter researchers from participating in actions financed on the basis of Regulation No 1290/2013, on the ground that those researchers might fear disclosure of confidential information to third parties, are unfounded.

73.Finally, contrary to what the applicant claims, the REA was also right to examine whether the information in the requested documents contained, inter alia, information which might be covered by professional secrecy within the meaning of Article 339 TFEU in order to refuse, where appropriate, to disclose it pursuant to the first indent of Article 4(2) of Regulation No 1049/2001.

74.It is in the light of those clarifications that the first plea of the action must be examined.

The application in the present case of the exception seeking to protect the commercial interests of third parties and the possibility of granting at least partial access

75.The applicant argues that, contrary to what the REA found in the contested decision, the requested documents could be disclosed, in whole or in part, without undermining the commercial interests of the members of the consortium.

76.The REA submits that, in the contested decision, it checked individually all the documents concerned and explained that they contained internal information of the members of the consortium relating to the consortium’s intellectual property, on-going research, know-how, methods, techniques and strategies, the disclosure of which would undermine the consortium’s commercial interests, since it would give an advantage to potential competitors of the members of the consortium. In so doing, the REA argues that it acted in accordance with Regulation No 1049/2001, the applicable case-law and Title III of Regulation No 1290/2013, and correctly took into account the protection of the confidentiality of information submitted to it in the context of the iBorderCtrl project resulting from Article 3 of the latter regulation. According to the REA, the applicant has not demonstrated that its assessment was incorrect.

77.In that regard, it should be recalled, at the outset, that Article 15(3) TFEU provides that any EU citizen, and any natural or legal person residing or having its registered office in a Member State, are to have a right of access to the documents of the EU institutions, bodies, offices and agencies, subject to the principles and conditions defined in accordance with the ordinary legislative procedure. The right of access to documents has been enshrined in Article 42 of the Charter of Fundamental Rights of the European Union.

78.Regulation No 1049/2001 seeks, as indicated in recital 4 and Article 1 thereof, to give the public a right of access to documents of the institutions which is as wide as possible (see judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 40 and the case-law cited).

79.The principle that the public should have the widest possible access to the documents is nonetheless subject to certain limits based on reasons of public or private interest. Regulation No 1049/2001, in particular recital 11 and Article 4 thereof, provides for a system of exceptions requiring institutions and bodies not to disclose documents in the event that that disclosure would undermine one of these interests (see, to that effect, judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 40 and the case-law cited, and of 13 January 2017, Deza v ECHA, T‑189/14, EU:T:2017:4, paragraph 51).

80.Since the exceptions provided for in Article 4 of Regulation No 1049/2001 derogate from the principle that the public should have the widest possible access to documents, they must be interpreted and applied strictly (see, to that effect, judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 75).

81.As is clear from the case-law referred to in paragraph 56 above, the system of exceptions laid down in Article 4 of Regulation No 1049/2001 is based on a balancing of the opposing interests in a given situation, that is to say, first, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case (see judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 63 and the case-law cited).

82.In order to justify refusal of access to a document, it is not sufficient, in principle, for that document to come within the scope of an activity or an interest mentioned in Article 4 of Regulation No 1049/2001. The institution concerned must, in principle, also explain how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article (see judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 64 and the case-law cited).

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