{"attribution":{"source":"legal.exploreworldai.com","canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-139-07-p","cite_as":"NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-139-07-p)","license":"https://legal.exploreworldai.com/revision","version":"legal-2026-10-13","fingerprint":"ewai:eu:a03983","proof":"sha256:b3ca369c7d1dc00089927d3802c1088eac0fa2ffdfc8f2ebdf17a98f9a5fe895","jurisdiction":"eu","lang":"en","publisher":"NovaCopilot by ExploreWorld Legal","terms":"https://legal.exploreworldai.com/om"},"brand_source":"Source: NovaCopilot","item":{"schema_version":"1.0.0","id":"eu:c-139-07-p","jurisdiction":"eu","lang":"en","brand_source":"Source: NovaCopilot","brand":{"product":"NovaCopilot","platform":"ExploreWorldAI","infrastructure":"ExploreWorld Legal","infrastructure_url":"legal.exploreworldai.com","legal_entity":"Valkiv Ventures AB","permanent_url":"https://legal.exploreworldai.com/novacopilot","source":"Source: NovaCopilot","powered_by":"Powered by NovaCopilot","license":"https://legal.exploreworldai.com/licensvillkor"},"sections":[{"title":"Case C-139/07 P","paragraphs":[]},{"title":"European Commission","paragraphs":["para_3"]},{"title":"Technische Glaswerke Ilmenau GmbH","paragraphs":["para_5"]},{"title":"Summary of the Judgment","paragraphs":["para_7","para_8","para_9","para_10","para_11","para_12"]},{"title":"(see paras 53-56, 58, 61-62)","paragraphs":[]},{"title":"JUDGMENT OF THE COURT (Grand Chamber)","paragraphs":[]},{"title":"29 June 2010 ( * )","paragraphs":["para_16","para_17","para_18","para_19","para_20","para_21","para_22","para_23","para_24","para_25","para_26","para_27","para_28","para_29","para_30","para_31","para_32","para_33","para_34","para_35","para_36"]},{"title":"Judgment","paragraphs":["para_38"]},{"title":"Legal context","paragraphs":["para_40","para_41"]},{"title":"4 Recitals 4, 6 and 11 of that regulation read as follows:","paragraphs":["para_43","para_44","para_45","para_46","para_47","para_48","para_49","para_50"]},{"title":"8 Under the heading ‘Exceptions’, Article 4 of Regulation No 1049/2001 provides:","paragraphs":["para_52","para_53","para_54","para_55","para_56","para_57","para_58","para_59","para_60","para_61","para_62","para_63","para_64","para_65","para_66","para_67","para_68"]},{"title":"Factual background to the dispute","paragraphs":["para_70","para_71","para_72","para_73","para_74","para_75","para_76","para_77","para_78","para_79","para_80"]},{"title":"The procedure before the General Court and the judgment under appeal","paragraphs":["para_82","para_83","para_84","para_85","para_86","para_87","para_88","para_89","para_90","para_91","para_92","para_93"]},{"title":"Forms of order sought before the Court of Justice","paragraphs":["para_95","para_96","para_97"]},{"title":"The appeal","paragraphs":["para_99","para_100"]},{"title":"Arguments of the parties","paragraphs":["para_102","para_103","para_104","para_105","para_106","para_107","para_108","para_109","para_110","para_111"]},{"title":"Findings of the Court","paragraphs":["para_113","para_114","para_115","para_116","para_117","para_118","para_119","para_120","para_121","para_122","para_123","para_124","para_125","para_126","para_127"]},{"title":"The action before the General Court","paragraphs":["para_129","para_130","para_131","para_132","para_133","para_134","para_135"]},{"title":"Costs","paragraphs":["para_137","para_138","para_139"]},{"title":"On those grounds, the Court (Grand Chamber) hereby:","paragraphs":["para_141","para_142","para_143","para_144","para_145","para_146"]}],"paragraphs":[{"text":"Case C-139/07 P","paragraph_id":"para_1"},{"text":"European Commission","paragraph_id":"para_2"},{"text":"v","paragraph_id":"para_3"},{"text":"Technische Glaswerke Ilmenau GmbH","paragraph_id":"para_4"},{"text":"(Appeals – Access to documents of the institutions – Regulation (EC) No 1049/2001 – Documents relating to procedures for reviewing State aid – Exception concerning protection of the purposes of investigations – Duty of the institution concerned to carry out a concrete, individual examination of the content of the documents covered\n by the application for access)","paragraph_id":"para_5"},{"text":"Summary of the Judgment","paragraph_id":"para_6"},{"text":"European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right\n of access to documents","paragraph_id":"para_7"},{"text":"(Art. 255 EC; European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent; Council Regulation No 659/1999,\n Art. 20)","paragraph_id":"para_8"},{"text":"In order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle,\n for that document to fall within an activity mentioned in Article 4(2) of Regulation No 1049/2001 regarding public access\n to European Parliament, Council and Commissi …","paragraph_id":"para_9"},{"text":"As regards procedures for reviewing State aid, such general presumptions may arise from Regulation No 659/1999 laying down\n detailed rules for the application of Article [88 EC] and from the case-law concerning the right to consult documents on the\n Commission’s administrative file. Regulation No 65 …","paragraph_id":"para_10"},{"text":"Thus, for the purposes of interpreting the exception laid down in Article 4(2), third indent, of Regulation No 1049/2001,\n account should be taken of the fact that interested parties other than the Member State concerned in the procedures for reviewing\n State aid do not have the right to consult the …","paragraph_id":"para_11"},{"text":"That general presumption does not exclude the right of those interested parties to demonstrate that a given document disclosure\n of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure\n of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001.","paragraph_id":"para_12"},{"text":"(see paras 53-56, 58, 61-62)","paragraph_id":"para_13"},{"text":"JUDGMENT OF THE COURT (Grand Chamber)","paragraph_id":"para_14"},{"text":"29 June 2010 ( * )","paragraph_id":"para_15"},{"text":"(Appeals – Access to documents of the institutions – Regulation (EC) No 1049/2001 – Documents relating to procedures for reviewing State aid – Exception concerning protection of the purposes of investigations – Duty of the institution concerned to carry out a concrete, individual examination of the content of the documents covered\n by the application for access)","paragraph_id":"para_16"},{"text":"In Case C‑139/07 P,","paragraph_id":"para_17"},{"text":"APPEAL under Article 56 of the Statute of the Court of Justice, brought on 28 February 2007,","paragraph_id":"para_18"},{"text":"European Commission, represented by V. Kreuschitz, P. Aalto and C. Docksey, acting as Agents, with an address for service in Luxembourg,","paragraph_id":"para_19"},{"text":"appellant,","paragraph_id":"para_20"},{"text":"the other parties to the proceedings being:","paragraph_id":"para_21"},{"text":"Technische Glaswerke Ilmenau GmbH, established in Ilmenau (Germany), represented by C. Arhold and N. Wimmer, Rechtsanwälte,","paragraph_id":"para_22"},{"text":"applicant at first instance,","paragraph_id":"para_23"},{"text":"supported by:","paragraph_id":"para_24"},{"text":"Kingdom of Denmark, represented by B. Weis Fogh, acting as Agent, with an address for service in Luxembourg,","paragraph_id":"para_25"},{"text":"intervener in the appeal,","paragraph_id":"para_26"},{"text":"Republic of Finland, represented by J. Heliskoski, acting as Agent, with an address for service in Luxembourg,","paragraph_id":"para_27"},{"text":"Kingdom of Sweden, represented by K. Wistrand, S. Johannesson and K. Petkovska, acting as Agents,","paragraph_id":"para_28"},{"text":"interveners at first instance,","paragraph_id":"para_29"},{"text":"THE COURT (Grand Chamber),","paragraph_id":"para_30"},{"text":"composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, R. Silva de Lapuerta and C. Toader, Presidents\n of Chambers, A. Rosas, K. Schiemann, E. Juhász, G. Arestis (Rapporteur) and T. von Danwitz, Judges,","paragraph_id":"para_31"},{"text":"Advocate General: J. Kokott,","paragraph_id":"para_32"},{"text":"Registrars: H. von Holstein, Deputy Registrar, and B. Fülöp, Administrator,","paragraph_id":"para_33"},{"text":"having regard to the written procedure and further to the hearing on 16 June 2009,","paragraph_id":"para_34"},{"text":"after hearing the Opinion of the Advocate General at the sitting on 8 September 2009,","paragraph_id":"para_35"},{"text":"gives the following","paragraph_id":"para_36"},{"text":"Judgment","paragraph_id":"para_37"},{"text":"1 By its appeal, the Commission of the European Communities seeks the annulment of the judgment of the Court of First Instance\n of the European Communities (now ‘the General Court’) of 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau v Commission [2006] ECR II-5131 (‘the judgment under …","paragraph_id":"para_38"},{"text":"Legal context","paragraph_id":"para_39"},{"text":"2 Article 255 EC confers on any citizen of the Union, and any natural or legal person residing or having its registered office\n in a Member State, a right of access to European Parliament, Council and Commission documents, subject to the principles and\n the conditions laid down by the Council for reasons of public or private interest.","paragraph_id":"para_40"},{"text":"3 European Parliament and Council Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament,\n Council and Commission documents (OJ 2001 L 145, p. 43) was adopted on the basis of Article 255(2) EC.","paragraph_id":"para_41"},{"text":"4 Recitals 4, 6 and 11 of that regulation read as follows:","paragraph_id":"para_42"},{"text":"‘(4) The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay\n down the general principles and limits on such access in accordance with Article 255(2) of the EC Treaty.","paragraph_id":"para_43"},{"text":"…","paragraph_id":"para_44"},{"text":"(6) Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including\n under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process.\n Such documents should be made directly accessible to the greatest possible extent.","paragraph_id":"para_45"},{"text":"…","paragraph_id":"para_46"},{"text":"(11) In principle, all documents of the institutions should be accessible to the public. However, certain public and private interests\n should be protected by way of exceptions. The institutions should be entitled to protect their internal consultations and\n deliberations where necessary to safeguard their ability to carry out their tasks. …’","paragraph_id":"para_47"},{"text":"5 Under the heading ‘Purpose’, Article 1 of Regulation No 1049/2001 states, in point (a), that the regulation aims to ‘define\n the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament,\n Council and Commission (hereinafter referred to as “the institutions”) documents provided for in Article 255 of the EC Treaty\n in such a way as to ensure the widest possible access to documents’.","paragraph_id":"para_48"},{"text":"6 Under the heading ‘Beneficiaries and scope’, Article 2(1) of the same regulation acknowledges the right of any citizen of\n the Union, and any natural or legal person residing or having its registered office in a Member State, to have access to documents\n of the institutions, ‘subject to the princi …","paragraph_id":"para_49"},{"text":"7 According to Article 3(a) of Regulation No 1049/2001, for the purposes of the regulation, ‘document’ means ‘any content whatever\n its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter\n relating to the policies, activities and decisions falling within the institution’s sphere of responsibility’.","paragraph_id":"para_50"},{"text":"8 Under the heading ‘Exceptions’, Article 4 of Regulation No 1049/2001 provides:","paragraph_id":"para_51"},{"text":"‘…","paragraph_id":"para_52"},{"text":"2. The institutions shall refuse access to a document where disclosure would undermine the protection of:","paragraph_id":"para_53"},{"text":"– …","paragraph_id":"para_54"},{"text":"– court proceedings and legal advice,","paragraph_id":"para_55"},{"text":"– the purpose of inspections, investigations and audits,","paragraph_id":"para_56"},{"text":"unless there is an overriding public interest in disclosure.","paragraph_id":"para_57"},{"text":"3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter\n where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine\n the institution’s decision-making process, unless there is an overriding public interest in disclosure.","paragraph_id":"para_58"},{"text":"Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the\n institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously\n undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.","paragraph_id":"para_59"},{"text":"…","paragraph_id":"para_60"},{"text":"6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be\n released.","paragraph_id":"para_61"},{"text":"7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the\n basis of the content of the document …’","paragraph_id":"para_62"},{"text":"9 Article 6 of Regulation No 1049/2001, headed ‘Applications’, provides, in paragraph (1), that ‘applications for access to\n a document shall be made … in a sufficiently precise manner to enable the institution to identify the document’, and that\n ‘the applicant is not obliged to state reasons for t …","paragraph_id":"para_63"},{"text":"10 Also with relevance to this case, Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the\n application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1), defines the procedures which apply to the exercise, by\n the Commission, of the power conferred upon it by Article 88 EC to rule on the compatibility of State aid with the common\n market.","paragraph_id":"para_64"},{"text":"11 Under the heading ‘Rights of interested parties’, Article 20 of Regulation No 659/1999 provides:","paragraph_id":"para_65"},{"text":"‘1. Any interested party may submit comments pursuant to Article 6 following a Commission decision to initiate the formal investigation\n procedure. Any interested party which has submitted such comments and any beneficiary of individual aid shall be sent a copy\n of the decision taken by the Commission pursuant to Article 7.","paragraph_id":"para_66"},{"text":"2. Any interested party may inform the Commission of any alleged unlawful aid and any alleged misuse of aid. Where the Commission\n considers that on the basis of the information in its possession there are insufficient grounds for taking a view on the case,\n it shall inform the interested party thereof. Where the Commission takes a decision on a case concerning the subject matter\n of the information supplied, it shall send a copy of that decision to the interested party.","paragraph_id":"para_67"},{"text":"3. At its request, any interested party shall obtain a copy of any decision pursuant to Articles 4 and 7, Article 10(3) and Article\n 11.’","paragraph_id":"para_68"},{"text":"Factual background to the dispute","paragraph_id":"para_69"},{"text":"12 By letter of 1 December 1998, the Federal Republic of Germany notified the Commission of various measures designed to consolidate\n TGI’s financial position, including a partial waiver of payment and a bank loan.","paragraph_id":"para_70"},{"text":"13 On 4 April 2000, the Commission initiated the formal investigation procedure under Article 88(2) EC concerning the said payment\n waiver and loan, which procedure was given the reference C 19/2000.","paragraph_id":"para_71"},{"text":"14 By a decision of 12 June 2001, in which it confined its assessment to the payment waiver alone, the Commission held that that\n measure constituted State aid incompatible with the common market. TGI challenged that decision by bringing an action for\n annulment before the General Court on 28 August …","paragraph_id":"para_72"},{"text":"15 On 3 July 2001, the Commission opened a second formal investigation procedure pursuant to Article 88(2) EC, under reference\n C 44/2001, concerning in particular the bank loan.","paragraph_id":"para_73"},{"text":"16 By letter of 24 October 2001, TGI submitted its observations in respect of the second formal investigation procedure and requested\n the Commission to give it access to a non-confidential version of the file and the opportunity to submit, subsequently, further\n observations. That request was rejected by the Commission by letter of 23 November 2001.","paragraph_id":"para_74"},{"text":"17 By letter of 1 March 2002, TGI applied, on the basis of Regulation No 1049/2001, for access to all documents in the Commission’s\n files in all the aid cases concerning TGI, particularly in aid case C 44/2001, and to all documents in the Commission’s files\n concerning State aid for the undertaking Schott Glas, save for business secrets relating to other undertakings.","paragraph_id":"para_75"},{"text":"18 By letter of 27 March 2002, the Commission rejected that application for access stating, in particular, that the documents\n sought were covered by the exception in Article 4(2) of Regulation No 1049/2001. The Commission also stated that the documents\n concerning TGI were documents forming part of the current formal investigation procedure C 44/2001.","paragraph_id":"para_76"},{"text":"19 By letter of 15 April 2002, TGI sent the Secretary-General of the Commission a confirmatory application for access to the\n same documents, pursuant to Article 7(2) of Regulation No 1049/2001.","paragraph_id":"para_77"},{"text":"20 By the contested decision, the Secretary-General rejected the application for access, confirming the refusal already given\n to TGI on the ground that disclosure of those various documents would be likely to undermine the protection of the purpose\n of inspections and investigations, that exception from the right of access being expressly provided for by Article 4(2), third\n indent, of Regulation No 1049/2001.","paragraph_id":"para_78"},{"text":"21 That decision further indicates that, since TGI’s application implied giving it access to a document containing a detailed\n description of a project of Schott Glas, that would be likely seriously to harm the commercial interests of that company,\n that interest being expressly protected by an exce …","paragraph_id":"para_79"},{"text":"22 On 2 October 2002, at the conclusion of the second formal investigation procedure under reference C 44/2001, the Commission\n adopted Decision C(2002) 2147 final concluding, in particular, that the bank loan granted to TGI constituted State aid incompatible\n with the common market. TGI challenged …","paragraph_id":"para_80"},{"text":"The procedure before the General Court and the judgment under appeal","paragraph_id":"para_81"},{"text":"23 By application lodged at the Registry of the General Court on 8 August 2002, TGI brought an action for the annulment of the\n contested decision, save in so far as the latter refused access to documents directly connected with the procedure currently\n in progress concerning the review of State aid concerning Schott Glas. The Kingdom of Sweden and the Republic of Finland applied\n for leave to intervene in support of the form of order sought by TGI.","paragraph_id":"para_82"},{"text":"24 The Commission, supported by Schott Glas, contended that the General Court should dismiss the action as unfounded.","paragraph_id":"para_83"},{"text":"25 By the judgment under appeal, the General Court, first, dismissed the action as inadmissible in so far as it sought annulment\n of an alleged implicit refusal of access to documents concerning ‘the concluded aid procedure or procedures in connection\n with the privatisation of Jenaer Schott Glas’ and, secondly, annulled the contested decision in so far as it refused access\n to documents relating to procedures for reviewing State aid granted to TGI.","paragraph_id":"para_84"},{"text":"26 In particular, in the context of the plea by TGI alleging infringement of Article 4 of Regulation No 1049/2001 as regards\n the exception to the right of access based on the protection of the purpose of inspections, investigations and audits, the\n General Court held, in paragraph 76 of the judgmen …","paragraph_id":"para_85"},{"text":"27 The General Court then stated, in paragraph 78 of that judgment, that it follows from Regulation No 1049/2001 that all the\n exceptions in paragraphs 1 to 3 of Article 4 thereof are stated as having to apply ‘to a document’. It further held, in the\n same paragraph, that the said concrete examination must be carried out in respect of each document covered by the application\n (Case T‑2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121, paragraph 70).","paragraph_id":"para_86"},{"text":"28 With further reference to that last-cited judgment, the General Court held, in paragraph 79 of the judgment under appeal,\n that only a concrete, individual examination, as opposed to an abstract, overall examination, could enable the institution\n to assess the possibility of granting the applican …","paragraph_id":"para_87"},{"text":"29 The General Court further stated, in paragraph 85 of the judgment under appeal, that the obligation for an institution to\n undertake a concrete, individual assessment of the content of the documents covered in the application for access is an approach\n to be adopted as a matter of principle, whic …","paragraph_id":"para_88"},{"text":"30 The General Court added, however, in paragraph 86 of the judgment under appeal, that such an examination might not be necessary\n where, due to the particular circumstances of the individual case, it was obvious that access to the documents must be refused\n or, on the contrary, granted. Such could …","paragraph_id":"para_89"},{"text":"31 For the purposes of examining, as set out in paragraph 87 of the judgment under appeal, whether TGI’s application covered\n documents for which, due to the circumstances of the individual case, it was not necessary to undertake such a concrete, individual\n examination, the General Court held, in p …","paragraph_id":"para_90"},{"text":"32 The General Court held, in paragraph 89 of the judgment under appeal, that so general an assessment, applying to the entire\n administrative file relating to procedures for reviewing State aid granted to TGI, did not demonstrate that there were special\n circumstances of the individual case permitt …","paragraph_id":"para_91"},{"text":"33 Moreover, in paragraph 92 of the judgment under appeal, the General Court found it paradoxical to evoke the necessity for\n a free and direct dialogue between the Commission, the Member State and the ‘undertakings concerned’, in the context of a\n climate of cooperation in good faith and mutual confidence, in order, precisely, to refuse one of the ‘parties’ concerned\n access to any information directly touching the very subject of the discussions.","paragraph_id":"para_92"},{"text":"34 Finally, the General Court concluded, in paragraph 100 of the judgment under appeal, that the complaint based on the lack\n of a concrete, individual examination of the documents referred to in the application for access had to be upheld and that\n the Commission’s pure and simple refusal of access …","paragraph_id":"para_93"},{"text":"Forms of order sought before the Court of Justice","paragraph_id":"para_94"},{"text":"35 By its appeal, the Commission seeks, first, the annulment of the judgment under appeal in so far as it annuls the contested\n decision, and, secondly, an order that TGI pay the costs.","paragraph_id":"para_95"},{"text":"36 TGI, the Republic of Finland and the Kingdom of Sweden contend that the appeal should be dismissed, and that the Commission\n should be ordered to pay the costs.","paragraph_id":"para_96"},{"text":"37 By order of the President of the Court of Justice of 4 March 2008, the Kingdom of Denmark was granted leave to intervene in\n support of the form of order sought by TGI, pursuant to Article 93(7) of the Rules of Procedure, that it to say solely by\n way of observations at the time of the oral procedure.","paragraph_id":"para_97"},{"text":"The appeal","paragraph_id":"para_98"},{"text":"38 In support of its appeal, the Commission makes five pleas, claiming, first, misinterpretation of Article 4(2) of Regulation\n No 1049/2001; second, disregard of the intention of the legislature; third, disregard of the wording of Article 4 of that\n regulation; fourth, infringement of Article 255 EC having regard to the provisions and the purpose of the said regulation;\n and, fifth, the existence of other errors of law in the judgment under appeal.","paragraph_id":"para_99"},{"text":"39 The first plea raised by the Commission, claiming misinterpretation of Article 4(2) of Regulation No 1049/2001, falls into\n two parts.","paragraph_id":"para_100"},{"text":"Arguments of the parties","paragraph_id":"para_101"},{"text":"40 In the first part of its first plea, the Commission accuses the General Court of misinterpreting Article 4(2) of Regulation\n No 1049/2001 by holding, in paragraphs 87 to 89 of the judgment under appeal, that there were no ‘particular circumstances\n of the individual case’, as referred to in parag …","paragraph_id":"para_102"},{"text":"41 In the Commission’s view, there were indeed ‘particular circumstances of the individual case’ by reason of which it was obvious\n that the access sought by TGI should be refused. The Commission considers, in that respect, that the absence of a right to\n consult the file for interested parties othe …","paragraph_id":"para_103"},{"text":"42 It follows, in the Commission’s argument, that the ‘particular circumstances of the individual case’ clearly show that access\n had to be refused to ‘all documents in the Commission’s files in all the aid cases concerning TGI’, without first carrying\n out a concrete, individual examination of those documents, and that those latter were clearly covered by the exception to\n the right of access laid down in Article 4(2) of Regulation No 1049/2001.","paragraph_id":"para_104"},{"text":"43 Moreover, the Commission maintains that there is a contradiction between paragraphs 86 and 89 of the judgment under appeal.\n In the latter paragraph, the General Court sought evidence of the existence of particular circumstances in order to demonstrate\n that a concrete, individual examination of the documents was not necessary, whereas it held, in paragraph 86, that those circumstances\n must be manifest and do not have to be proved.","paragraph_id":"para_105"},{"text":"44 TGI, the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden maintain that the Commission’s arguments in\n the first part of its first plea are without foundation, and should be dismissed.","paragraph_id":"para_106"},{"text":"45 TGI considers that the fact that interested parties other than the Member State concerned in the State aid control procedures\n do not have the right to consult the file cannot, in itself, prevent there being a right of access to documents pursuant to\n Regulation No 1049/2001. It argues that the f …","paragraph_id":"para_107"},{"text":"46 Moreover, TGI argues that the ‘particular circumstances of the individual case’ must go beyond the mere fact that the case\n in question concerns the area of State aid. According to TGI, it must mean the particular circumstances ‘of the case’, rather\n than common circumstances generally encountere …","paragraph_id":"para_108"},{"text":"47 The Republic of Finland adds that it is immaterial whether the applicant is the recipient of State aid or another person referred\n to in Article 2(1) of Regulation No 1049/2001. Since the latter provision applies without distinction to all applications\n for access, it does not reserve for the said recipient a less favourable position than that granted to other applicants when\n an application is handled for access to documents concerning a procedure for reviewing State aid.","paragraph_id":"para_109"},{"text":"48 The Kingdom of Sweden argues that the principle of openness, ensured by Regulation No 1049/2001, and the principle of the\n rights of the defence, which covers the right to consult the file in procedures for reviewing State aid, are two distinct\n principles which do not pursue the same objective, …","paragraph_id":"para_110"},{"text":"49 Moreover, TGI considers that it was for the Commission to adduce evidence of the existence of particular circumstances, since\n it was the Commission which relied on an exception to a rule of principle that there must be a concrete, individual examination\n of the documents covered by the request for access. In consequence, it was not for the General Court to investigate of its\n own motion whether such circumstances existed.","paragraph_id":"para_111"},{"text":"Findings of the Court","paragraph_id":"para_112"},{"text":"50 As a preliminary observation, it should be noted that the application made by TGI concerns the whole of the administrative\n file regarding procedures for reviewing the State aid granted to it.","paragraph_id":"para_113"},{"text":"51 It should be remembered that, having been adopted on the basis of Article 255(2) EC, Regulation No 1049/2001 is designed,\n as recital 4 and Article 1 thereof indicate, to confer on the public as wide a right of access as possible to documents of\n the institutions. It is also apparent from the sai …","paragraph_id":"para_114"},{"text":"52 In this case, the Commission had refused, precisely, to communicate to TGI documents relating to procedures for reviewing\n State aid which had been granted to it, invoking the exception to the right of access laid down in Article 4(2), third indent,\n of Regulation No 1049/2001, based on protectio …","paragraph_id":"para_115"},{"text":"53 It is true that, in order to justify refusal of access to a document the disclosure of which has been requested, it is not\n sufficient, in principle, for that document to fall within an activity mentioned in Article 4(2) of Regulation No 1049/2001.\n The institution concerned must also supply expl …","paragraph_id":"para_116"},{"text":"54 However, the Court has acknowledged that it is, in principle, open to the Community institution to base its decisions in that\n regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind\n are likely to apply to requests for disclosure relating to documents of the same nature ( Sweden and Turco , paragraph 50).","paragraph_id":"para_117"},{"text":"55 As regards procedures for reviewing State aid, such general presumptions may arise from Regulation No 659/1999 and from the\n case-law concerning the right to consult documents on the Commission’s administrative file. In that regard, it should be noted\n that, according to recital 2 thereof, Regula …","paragraph_id":"para_118"},{"text":"56 Regulation No 659/1999, and, in particular, Article 20 thereof, do not lay down any right of access to documents in the Commission’s\n administrative file for interested parties in the context of the review procedure opened in accordance with Article 88(2)\n EC.","paragraph_id":"para_119"},{"text":"57 By contrast, Article 6(2) of the said regulation provides that comments received by the Commission in the context of the said\n review procedure are to be submitted to the Member State concerned, the latter then having the opportunity to reply to those\n comments within a given time-limit. The proc …","paragraph_id":"para_120"},{"text":"58 It follows from the above that the interested parties, except for the Member State responsible for granting the aid, do not\n have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file.\n Account must be taken of that fact for the purpo …","paragraph_id":"para_121"},{"text":"59 It is true that the right to consult the administrative file in the context of a review procedure, opened in accordance with\n Article 88(2) EC, and the right of access to documents, pursuant to Regulation No 1049/2001 are legally distinct, but the\n fact remains that they lead to a comparable situ …","paragraph_id":"para_122"},{"text":"60 Moreover, it is important to note that, in contrast with cases where the Community institutions act in the capacity of a legislature,\n in which wider access to documents should be authorised pursuant to recital 6 of Regulation No 1049/2001, as was the case\n in Sweden and Turco v Council , documen …","paragraph_id":"para_123"},{"text":"61 It follows from the above considerations as a whole that, for the purposes of interpreting the exception laid down in Article\n 4(2), third indent, of Regulation No 1049/2001, the General Court should, in the judgment under appeal, have taken account\n of the fact that interested parties other than …","paragraph_id":"para_124"},{"text":"62 That general presumption does not exclude the right of those interested parties to demonstrate that a given document disclosure\n of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure\n of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001.","paragraph_id":"para_125"},{"text":"63 By failing to take that fact into consideration, and by wrongly holding, in paragraphs 87 to 89 of the judgment under appeal,\n that it was not obvious in this case that access to all the documents relating to procedures for reviewing State aid covered\n by TGI’s request for access on the basis of …","paragraph_id":"para_126"},{"text":"64 Consequently, the first part of the Commission’s first plea must be upheld, and the judgment under appeal must be set aside\n in so far as it annulled the contested decision, without there being any need to examine the second part of that plea or the\n Commission’s other pleas in support of its appeal.","paragraph_id":"para_127"},{"text":"The action before the General Court","paragraph_id":"para_128"},{"text":"65 In accordance with the first paragraph, second sentence, of Article 61 of the Statute of the Court of Justice of the European\n Union, where the judgment under appeal has been annulled, the Court of Justice may itself give final judgment in the matter,\n where the state of the proceedings so permits. That is so in this case.","paragraph_id":"para_129"},{"text":"66 The action by TGI before the General Court, in so far as it has not yet been definitively determined by that Court, sought\n the annulment of the contested decision in so far as it refused access to documents relating to procedures for the review\n of State aid granted to TGI and was based on an in …","paragraph_id":"para_130"},{"text":"67 Concerning the first branch, it is clear from paragraphs 61 and 63 of this judgment that, in this case, the Commission was\n able, pursuant to Article 4(2), third indent, of Regulation No 1049/2001, to refuse access to all the documents relating to\n procedures for the review of State aid covered by TGI’s request for access on the basis of that regulation, and could do so\n without first making a concrete, individual examination of those documents.","paragraph_id":"para_131"},{"text":"68 In the absence of evidence emerging from the action, capable of rebutting the general presumption previously referred to in\n paragraph 61 of this judgment, TGI cannot claim that the Commission must carry out such an examination, and therefore this\n first branch must be dismissed.","paragraph_id":"para_132"},{"text":"69 It follows from the above that the second branch is ineffective. Given that Article 4(2), third indent, of Regulation No 1049/2001\n allows in principle for access to the documents constituting the file of a procedure for reviewing State aid to be refused,\n a reasoning for the refusal which is also inspired by aspects relating to procedures against a Member State for failure to\n fulfil its obligations cannot make the refusal unlawful.","paragraph_id":"para_133"},{"text":"70 The third and fourth branches are unfounded. In its action, TGI neither argues that part of the documents covered by its request\n were not covered by the general presumption previously referred to in paragraph 61 of this judgment, nor states what higher\n public interest might justify the disclosure of the documents concerned. As is apparent from its action, it relies merely\n on its interest as the beneficiary of the State aid concerned by review procedures.","paragraph_id":"para_134"},{"text":"71 Consequently, the action brought by TGI before the General Court seeking annulment of the contested decision in so far as\n it refuses access to documents relating to procedures for reviewing State aid granted to TGI must be dismissed.","paragraph_id":"para_135"},{"text":"Costs","paragraph_id":"para_136"},{"text":"72 Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself\n gives final judgment in the case, the Court shall make a decision as to costs. Article 69(2) of the Rules of Procedure, which\n applies to appeal proceedings by virtue of Arti …","paragraph_id":"para_137"},{"text":"73 Since the Commission’s appeal has been upheld and TGI’s action before the General Court has been dismissed, TGI must be ordered\n to bear its own costs and pay those incurred by the Commission both at first instance and on appeal, as the Commission has\n pleaded.","paragraph_id":"para_138"},{"text":"74 The Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden must be ordered to bear their own costs.","paragraph_id":"para_139"},{"text":"On those grounds, the Court (Grand Chamber) hereby:","paragraph_id":"para_140"},{"text":"1. Annuls points 1 and 3 of the operative part of the judgment of the Court of First Instance of the European Communities of\n 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau v Commission ;","paragraph_id":"para_141"},{"text":"2. Dismisses the action brought before the Court of First Instance of the European Communities for annulment of the decision\n of the Commission of the European Communities of 28 May 2002 in so far as it refuses access to documents relating to procedures\n for reviewing State aid granted to Technische Glaswerke Ilmenau GmbH;","paragraph_id":"para_142"},{"text":"3. Orders Technische Glaswerke Ilmenau GmbH to bear its own costs and pay those incurred by the European Commission, both at\n first instance and on appeal;","paragraph_id":"para_143"},{"text":"4. 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