Ryanair vs EC: PSI on State Aid not necessarily to be made public

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Public sector documents related to procedures for reviewing State aid are not necessarily required to be made public upon request.

Author: Hans Graux

Metadata

  • Thesaurus terms: state aid, access request, individual examination, public interest
  • Regulatory Body: General Court of the European Union (formerly known as the Court of First Instance)
  • Jurisdiction: European Union
  • Legal provisions concerned:
    Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents
  • Case identifier: Cases T‑494/08 to T‑500/08 and T‑509/08 – Ryanair Ltd v. European Commission
  • Date: 10 December 2010

Short impact analysis
Ryanair requested access to documents held by the European Commission in the context of State aid investigations. The Commission refused, arguing that these documents were covered by a number of exceptions to the general access right, notably because they were a part of Commission investigations. The General Court declared this refusal to be justified, as Ryanair’s information requests were not sufficiently specific to refute the presumption of secrecy created by the exception. The ruling shows the importance of well targeted information requests, but also highlights how delicate the balance of evidence is: is it up to the requesting party to show why an exception doesn’t apply, or to the refusing party to argue why it does? This decision appears to lean towards the former position, based on the existing Regulation and jurisprudence.

Summary

As a result of questions being raised around possible State aid granted to Ryanair Ltd by airport operators in Denmark, Italy, Germany, Finland, France and Slovakia, a series of investigations were launched by the European Commission between 2002 and 2006. Summaries of the resulting decisions were published in the Official Journal of the European Union. Following these publications, Ryanair filed a request for additional information on the investigations, based on Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

Specifically, Ryanair requested access to “the complaints and notifications received by the Commission, to comments submitted by third parties, to letters and other messages exchanged between the Commission, the Member States concerned and the operators of the airports concerned, to documents provided to the Commission by the Member States and the operators of the airports concerned and to any other documents in the Commission’s files, including analyses made by the Commission of documents received, studies, reports, surveys, and interim conclusions leading to the Commission’s decisions to initiate the formal investigation procedures”. Given the extent of this request, Ryanair noted that, where parts of these documents were covered by exceptions to the right of access as specified in the Regulation, it only requested access to the parts of those documents which were not covered by those exceptions.

The Commission however denied this request for almost all of the requested documents. It argued that they were covered by several exceptions specified in the Regulation, notably exceptions:

  • relating to the protection of the purpose of inspections, investigations and audits;
  • relating to the protection of the decision-making process prior to the adoption of a decision;
  • relating to the protection of commercial interests;
  • relating to the protection of the decision‑making process after the adoption of a decision;
  • relating to the protection of legal advice.

The Commission also decided that no overriding public interest justified disclosure of the documents and that it was impossible to grant partial access because the documents were wholly covered by at least two exceptions. Ryanair then turned to the General Court to fight this refusal to grant access.

While Ryanair also objected to the decisions on formal procedural grounds, the more interesting part of Ryanair’s complaint related to a claimed misapplication of the exceptions. Because the Regulation presents access rights as the default basic principle, Ryanair argued that the exceptions should be interpreted restrictively, and that the lack of a concrete, individual examination of the documents constituted an error in law. Specifically, the appeal to the exception related to investigations was criticized by Ryanair as being ‘vague, repetitive and general and [potentially applicable] to any investigation file’. Furthermore, it argued that the Commission did not demonstrate that their disclosure would in fact undermine the interest protected by those exceptions, and that it did not take account of the overriding public interest which justified their disclosure. In addition, Ryanair objected to the Commission’s decision not to grant even partial access to those documents.

However, the Court rejected these arguments and upheld the Commission’s refusal. Recalling earlier case law (Commission v Technische Glaswerke Ilmenau), the Court declared that interested parties other than the Member State generally do not have a right to consult the documents in the Commission’s administrative file related to State aid, and that individual consideration of documents was therefore not needed. The documents were covered by a presumption that disclosure in principle undermines protection of the objectives of investigation activities. While this presumption can be refuted, Ryanair did not present sufficiently specific arguments in relation to expressly and individually identified documents (or any parts thereof) to do so.

Finally, the Court also held that there was no overriding public interest justifying disclosure of the documents, as the principles of openness and transparency and the interests of air transport consumers were not shown to take precedence over the public interest in the protection of the purpose of investigations.

Thus, the Court upheld the refusal to grant access, even if only in part, to the requested documents.

Links
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008TJ0494:...
http://www.europarl.europa.eu/RegData/PDF/r1049_en.pdf
http://www.lapsi-project.eu/lapsifiles/DSK.pdf

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