The General Court has dismissed an appeal against the European Commission’s refusal to allow access to certain documents cited in its State aid decision against Starbucks in October 2015. The applicant, Steven Verschuur, had previously applied to the Commission requesting access to various materials referred to in the decision, including observations provided by a competitor of Starbucks in response to an informal request by the Directorate-General for Competition (DG Competition) in the context of its State aid investigation. Mr Verschuur claimed access to these documents on the basis of a general Regulation granting public access to European Parliament, Council and Commission documents (Regulation (EC) No 1049/2001). Access under this regulation is, however, subject to certain limits based on public or private interest grounds, including refusal of access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits.
The General Court upheld the Commission’s refusal to provide the documents, concluding that these documents were covered by the general presumption, developed in European case law, that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities. In doing so it rejected the applicant’s contention that the competitor’s observations were not a response to the State aid opening decision and did not therefore come within the scope of this general presumption. The Court adopted a broad interpretation, holding that (i) the presumption covers access to ‘documents in the administrative file’ relating to a procedure reviewing State aid; (ii) it was therefore not restricted solely to responses to the State aid opening decision; and (iii) the documents supplied by the competitor “undoubtedly” formed part of the Commission’s administrative file within this meaning and were thus protected by the general presumption. Although the Court acknowledged that this presumption could be reversed by demonstrating a higher public interest that justified disclosure, in the present case the applicant had not put forward such arguments. The action was therefore dismissed as manifestly lacking any foundation in law.