Kargins v Commission (Access to documents - Documents originating from a Member State - Documents relating to the Commission’s intervention in a dispute before the Supreme Court of Latvia - Judgment) [2024] EUECJ T-110/23 (13 November 2024)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Kargins v Commission (Access to documents - Documents originating from a Member State - Documents relating to the Commission’s intervention in a dispute before the Supreme Court of Latvia - Judgment) [2024] EUECJ T-110/23 (13 November 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T11023.html Cite as: [2024] EUECJ T-110/23, ECLI:EU:T:2024:805, EU:T:2024:805

( Access to documents - Regulation (EC) No 1049/2001 - Documents originating from a Member State - Documents relating to the Commission’s intervention in a dispute before the Supreme Court of Latvia - List of documents covered by the application for access to documents - Partial refusal of access - Objection by a Member State to disclosure of documents - Exception relating to the protection of court proceedings - Obligation to state reasons - Presumption of legality attaching to EU measures - Review by the institution and by the EU Courts of the Member State’s grounds for objection - Article 41 of the Charter of Fundamental Rights - Time limits provided for in Regulation No 1049/2001 )

Rems Kargins, residing in Riga (Latvia), represented by O. Behrends, lawyer,

European Commission, represented by A.-C. Simon and A. Spina, acting as Agents,

composed of A. Marcoulli, President, V. Tomljenović (Rapporteur) and W. Valasidis, Judges,

1 By his action based on Article 263 TFEU, the applicant, Mr Rems Kargins, seeks annulment of Decision C(2022) 9584 final of the European Commission of 12 December 2022 refusing, in whole or in part, access to documents relating to the intervention by the European Commission as amicus curiae in a case concerning the dispute between the applicant and a Latvian company before the Augstākā tiesa (Supreme Court, Latvia) (‘the contested decision’).

2 The applicant, the successor in law to a former shareholder of a Latvian bank, initiated judicial proceedings in Latvia against a third-party company in order to assert his rights on account of the loans which that former shareholder had granted to the bank in question. The applicant was successful at first instance before the Rīgas apgabaltiesas Civillietu tiesu kolēģija (Regional Court, Riga (Division of Civil Cases), Latvia) and at second instance before the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division), Latvia). The third-party company brought an appeal on a point of law against that judgment before the Augstākā tiesa (Supreme Court). It was in the context of those proceedings before the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division)) that the Commission decided to intervene as amicus curiae. The Commission submitted its observations in an amicus curiae letter dated 22 December 2016 addressed to the Augstākā tiesa (Supreme Court).

3 By letter of 6 October 2021, the applicant applied to the Commission in order to obtain access to the documents relating to the amicus curiae letter sent by the Commission to the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division)), on the basis, inter alia, of Article 2 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) and Article 6 of that regulation.

4 In essence, the applicant applied for access to all the documents relating to the Commission’s intervention as amicus curiae in the context of the Latvian national proceedings between him and the third-party company, the communications or correspondence between the Commission and that third-party company and the Commission’s correspondence or communications in relation to its intervention as amicus curiae, including the Commission’s internal communications and the documents relating to the preparation of the amicus curiae letter.

5 By letter of 2 December 2021, in response to that initial application, the Commission identified five documents in which personal data were redacted for the purposes of their transmission to the applicant.

6 By letter of 23 December 2021, the applicant made a confirmatory application, on the basis of Article 7(2) of Regulation No 1049/2001, asking the Commission, first, to revise its position regarding the disclosure of the documents requested and, in particular, to provide a more complete response to his initial application and, secondly, to reconsider its decision to redact the names of members of its staff.

7 By the contested decision, some additional documents in the Commission’s possession were identified as being covered by the applicant’s application for access. After consulting the Latvian authorities in that regard, the Commission granted full or partial access, albeit with personal data redacted, to some of those documents.

8 However, the Commission refused access to a number of other documents, stating that they formed part of the Latvian judicial case file and that the Latvian authorities opposed such access.

9 The Commission based its refusal decision on Article 4(1)(b) of Regulation No 1049/2001, concerning the protection of privacy and the integrity of the individual, and the second indent of Article 4(2) of the same regulation, concerning the protection of court proceedings and legal advice.

12 In support of his action, the applicant relies on six pleas in law, alleging, first, that the Commission did not provide a complete list of the requested documents; secondly, that the Commission wrongly redacted some of the documents to which it granted access; thirdly and fourthly, that the Commission refused access to a number of other documents, contrary to Article 4(2) of Regulation No 1049/2001 and, as regards the fourth plea, without taking into account the existence of an overriding interest; fifthly, that the Commission failed to grant access to the case file, contrary to Article 41 of the Charter of Fundamental Rights of the European Union; and, sixthly, that the Commission failed to comply with the time limit provided for in Article 8(1) and (2) of Regulation No 1049/2001.

1. The first plea in law, alleging an error of law and an error of assessment by the Commission in failing to produce a complete list of the requested documents, and infringement of the obligation to state reasons

13 In the context of the present plea, the applicant, in essence, complains that the Commission failed to fulfil its obligation to state reasons and its obligations under Regulation No 1049/2001 in that, in the reply to his application, it did not produce a complete list of the documents he had requested.

(a) The complaint alleging infringement of the obligation to state reasons as regards the list of requested documents

14 The applicant submits, in essence, that the list of documents provided by the Commission is manifestly incomplete, as demonstrated by the discrepancy, which has not been explained by the Commission, between the 5 documents it identified in its reply to the initial application and the 35 documents identified in the contested decision. Moreover, in so far as the Commission did not provide explanations as to the non-existence of the documents referred to in his confirmatory application, the contested decision is said to be vitiated by a failure to state reasons.

15 It is settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measures in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraph 53 and the case-law cited).

16 It should be recalled that the applicant’s application was for access to all the documents relating to the Commission’s intervention as amicus curiae, including in particular the preparatory documents for the amicus curiae letter and the correspondence with the Latvian courts or with the third-party company which was a party to the dispute in Latvia.

17 In the contested decision, in response to the confirmatory application, the Commission stated, after re-examining the applicant’s application for access to documents, that it held a number of documents which corresponded to his application for access. First, the Commission recalled the five documents sent in the context of the initial reply, namely the letter from the Latvian authorities requesting the Commission’s intervention as amicus curiae, an internal note from the Commission’s Legal Service to the Commission’s Directorate-General for Competition concerning the intervention requested, the Commission’s decision to intervene as amicus curiae, the application for leave to intervene submitted to the Augstākā tiesa (Supreme Court) and the letter from that court granting the application for leave to intervene.

18 Secondly, the Commission listed the additional documents identified following the confirmatory application, including two annexes to the letter from the Latvian authorities requesting the Commission’s intervention, which had not initially been sent to the applicant, and the documents relating to six communications between the Latvian authorities and the Commission concerning the latter’s intervention, which took place between 10 October 2016 and 31 May 2018. Those communications include a letter from the Augstākā tiesa (Supreme Court) forwarding to the Commission information on the dispute between the applicant and the third-party company before the Latvian courts. That letter included, as an annex, 21 documents relating to that dispute, which are also identified. In addition, the amicus curiae letter submitted by the Commission, in its English-language version, was also identified.

19 In response to the reservations expressed by the applicant in his confirmatory application as to the completeness of the list of documents initially transmitted, particularly as regards the absence of documents, first, the Commission stated that it did not hold any document relating to the third-party company that was a party to the national proceedings or correspondence with that company or its representatives. Secondly, the Commission stated that, apart from the documents on the list it was forwarding, it did not hold any other documents covered by the application for access, in so far as its communications in that regard were limited to exchanges with the Latvian authorities. Thirdly, the Commission stated that, since the applicant had himself attached the amicus curiae letter to his initial application, that document had not been communicated by it to the applicant as part of the reply to that application.

20 Moreover, in response to the applicant’s specific observations with regard to certain documents, the Commission stated, first of all, that there was no document relating to a meeting held in Brussels on 29 June 2016 or a report of that meeting. Next, it stated that it did not hold two of the documents referred to in the communication of 11 November 2016 from the Augstākā tiesa (Supreme Court) to the Commission. Lastly, it stated that there was no document relating to an additional agent joining the team responsible for the present case.

21 It follows from the foregoing considerations that, in the contested decision, the Commission explained sufficiently the communications which had taken place in connection with its intervention as amicus curiae before the Augstākā tiesa (Supreme Court) and which constituted the list of documents it identified as being covered by the applicant’s application.

22 In that regard, contrary to what the applicant claims, the Commission confirmed that it did not hold any documents covered by his application for access other than those on the abovementioned list. Moreover, the Commission provided explanations as to the non-existence of the documents which the applicant had specifically requested in his confirmatory application.

23 In those circumstances, the explanations provided by the Commission enable the applicant to understand and the EU Courts to review the grounds on which the contested decision is based as regards the documents which it considered to be covered by the application for access and the reasons why the Commission did not hold the documents specifically referred to in the confirmatory application. Accordingly, the applicant’s complaint that the Commission failed to fulfil its obligation to state reasons must be rejected.

(b) The complaints based on the alleged incompleteness of the list of documents provided by the Commission

24 In essence, the applicant complains that the Commission failed to comply with its obligation to provide a complete list of the requested documents.

25 It should be recalled, as is apparent from Article 1 of Regulation No 1049/2001, read, in particular, in the light of recital 4 thereof, that the purpose of the regulation is to give the fullest possible effect to the right of public access to documents held by the institutions (judgment of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 61) and that, in accordance with recital 11 of that regulation, ‘in principle, all documents of the institutions should be accessible to the public’.

26 Thus, the right of public access enshrined in Regulation No 1049/2001 concerns only those institution documents which the institutions effectively hold and that right cannot extend to documents which are not in the possession of the institutions or which do not exist (see, to that effect, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraphs 38 and 46).

27 In addition, it should be recalled that, in accordance with the presumption of legality attaching to EU acts, where the institution concerned asserts that a particular document to which access has been sought does not exist, there is a presumption that it does not. That, however, is a simple presumption that the person seeking access may rebut in any way by relevant and consistent evidence (judgment of 25 June 2002, British American Tobacco (Investments) v Commission, T‑311/00, EU:T:2002:167, paragraph 35).

28 If that presumption is rebutted and the Commission may no longer rely on it, it is for the Commission to prove the non-existence or lack of possession of the documents requested by providing plausible explanations enabling the reasons for such non-existence or lack of possession to be established (see judgment of 20 September 2019, Dehousse v Court of Justice of the European Union, T‑433/17, EU:T:2019:632, paragraph 49 and the case-law cited).

29 In the present case, it must be recalled that the Commission stated, at page 11 of the contested decision, that there were no other documents covered by the application for access.

30 In order to challenge that assertion, the applicant first points to the discrepancy between the five documents initially identified and the much greater number of documents identified in the contested decision.

31 That argument alone cannot rebut the presumption of legality referred to in paragraph 27 above. In that regard, it should be recalled that, since the Commission is required to carry out a full examination of all the documents covered by an application for disclosure, it may, at any moment, including for the first time during the examination of the confirmatory application to the application for access, identify further documents potentially related to the application (judgment of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraph 84).

32 Next, the applicant submits that the fact that the Commission merely examined its official repository does not mean that it checked all the documents in its possession. Public access to documents of the institutions, guaranteed by Regulation No 1049/2001, cannot depend on the way in which documents are stored in official or unofficial repositories or even in the areas of the officials concerned.

33 Moreover, the applicant submits that it is implausible that there are no documents regarding the meeting which took place in Brussels on 29 June 2016, or internal emails within the Commission with regard to the amicus curiae letter or communications concerning a new agent joining the team responsible for the case or even preparatory drafts of the amicus curiae letter ultimately submitted.

34 In so far as the applicant’s arguments are based on general assumptions and are not supported by concrete evidence, they are not capable of rebutting the presumption of legality of the contested decision, in which the Commission stated that there were no further documents covered by the application for access other than those which it had identified.

35 Lastly, it is necessary to examine the more specific arguments and evidence put forward by the applicant in relation to the requested documents.

36 The applicant submits that the meeting held in Brussels on 29 June 2016 is referred to in the letter from the Latvian authorities, dated 19 September 2016, requesting the Commission’s intervention as amicus curiae, which was communicated to the applicant in response to his initial application and which was identified as document 1. He adds that, in that document, the Latvian authorities state that, during that meeting, information relating to the case and to the proceedings pending in Latvia was transmitted to the Commission. In addition, he points out that, in the contested decision, the Commission acknowledged that that meeting had actually taken place. The applicant infers from this that it is highly likely that preparatory documents were drawn up prior to that meeting and that minutes or follow-up documents were drawn up following that meeting.

37 It is true that those elements relied on by the applicant demonstrate both that the meeting in question was held and that information was transmitted during that meeting. However, as such, they do not make it possible to rebut the presumption of non-existence, or even lack of possession, on which the Commission relies, of the documents relating to that meeting which are covered by the application for access.

38 Even if the abovementioned elements were capable of rebutting the presumption relied on by the Commission, it is necessary to examine whether, in accordance with the case-law recalled in paragraph 28 above, the explanations provided by the Commission permit the inference that it is plausible that the documents in question did not exist or that the institution was not in possession of them.

39 In response to the applicant’s claims, the Commission noted that, in their letter of 19 September 2016, the Latvian authorities had merely stated that information on the case and pending litigation had been transmitted to it. It added that, given the context, it could reasonably be assumed that it was verbal information, which cannot be regarded as proof of the existence of written documents.

40 It should be borne in mind that the letter of 19 September 2016, which refers to the meeting held in Brussels on 29 June 2016, is document 1 to which partial access was granted by the Commission following the initial application.

41 It is a letter from the Ministry of Finance of the Republic of Latvia, addressed to the Commission’s Directorate-General for Competition, stating in its title the reference of the case before the Augstākā tiesa (Supreme Court) and the words ‘Request for Commission intervention pursuant to Article 29(2) of [Regulation 2015/1589]’. The second paragraph of that letter states, after the expressions of courtesy, that ‘Latvia had already informed the Commission of the litigation and, more specifically, of the recent judgment, in earlier communications’. That sentence is accompanied by a footnote (footnote 3), which contains the following text: ‘Information on the case and the pending litigation was submitted inter alia on 29 June 2016 in the framework of a meeting in Brussels.’

42 First of all, it is clear that it cannot be inferred from the wording of that letter that the meeting to which the letter refers had as its sole or main subject matter the dispute in question. It may reasonably be assumed that the Ministry of Finance of a Member State has various meetings with the Commission for the purpose of discussing different matters. It is therefore plausible, as the Commission submits, that, in connection with that meeting, which could have dealt with other matters, there was no document falling within the scope of the applicant’s application for access to documents relating, specifically, to the intervention as amicus curiae or the correspondence with the third-party company which was a party to the national proceedings.

43 Next, it should be noted that the letter in question refers to an exchange of information and not to specific documents. Moreover, it is stated that that information was transmitted, inter alia, in the context of the meeting of 29 June 2016. The use of the plural with regard to the term ‘communications’ and the expression ‘inter alia’ makes the Commission’s explanation as to the non-existence of a document on that meeting which falls within the scope of the applicant’s application plausible.

44 In that regard, it should be borne in mind that the public’s right of access to the institutions’ documents covers only documents and not information in the wider sense of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual (judgment of 24 May 2011, NLG v Commission, T‑109/05 and T‑444/05, EU:T:2011:235, paragraph 129).

45 Lastly, the fact that the Latvian authorities sent the letter of 19 September 2016, which contains detailed information on the dispute in question, accompanied by an explanatory memorandum and a copy of the judgment of 13 June 2016 of the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division)) in the case between the applicant and the third-party company, which is document 7, to which partial access was granted following the confirmatory application, makes the Commission’s explanations – according to which, at the meeting of 29 June 2016, information was transmitted only orally – all the more plausible. It seems plausible that, on 29 June 2016, a few days after the delivery of the judgment by the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division)), although no appeal on a point of law had yet been brought against that judgment, as the third-party company lodged its appeal on a point of law on 26 August 2016, as is apparent inter alia from the explanatory memorandum, to which partial access, as document 1.2, was granted following the confirmatory application, the Latvian authorities were not yet in a position to draw up a document concerning the possible intervention of the Commission as amicus curiae. They could have confined themselves to transmitting information orally to the Commission, indicating to it that they intended formally to ask it to intervene if an appeal on a point of law was brought.

46 In those circumstances, the Commission provided a plausible explanation enabling the applicant and the Court to understand why a document on the meeting in question, which would fall within the scope of the applicant’s request, did not exist, in accordance with the case-law cited in paragraph 28 above.

(2) The Commission’s internal emails and the preparatory drafts of the amicus curiae letter

47 As regards the Commission’s internal emails and the preparatory drafts of the amicus curiae letter that was ultimately submitted, the applicant submits that the Commission did not identify such documents. In that regard, he submits that it is unlikely that there are no internal emails and that the whole case has been settled orally. In addition, he submits that any important document, in practice, is drawn up on the basis of working documents or fact sheets and that it is impossible for there to be no preparatory document.

48 In that regard, first of all, it should be noted that the Commission identified and sent to the applicant, as document 2, in response to his initial application, the letter which its Legal Service sent on 29 September 2016 to the Directorate-General for Competition when the Latvian authorities’ request for the Commission to intervene in the Latvian proceedings was received. Similarly, the Commission sent the applicant, as document 3, its decision on the intervention, which was adopted on 10 November 2016, following the letter from the Legal Service. Therefore, contrary to what the applicant maintains, documents that were exchanged between Commission services prior to the amicus curiae letter were identified by the Commission and transmitted to the applicant.

49 Next, it should be noted that the applicant has not adduced relevant and consistent evidence as to the existence of other documents relating to internal Commission communications, whether electronic or not, and drafts of the amicus curiae letter.

50 In any event, as regards the internal communications relating to the Commission’s intervention as amicus curiae, the fact that, in the initial letter from the Commission’s Legal Service, namely document 2, referred to in paragraph 48 above, two employees of that service were identified as contact points and their internal telephone numbers were provided suggests that, if other exchanges may have taken place between the Commission’s services, they may have been oral.

51 As regards the drafts of the amicus curiae letter, the Commission stated that, given that a team of only three agents, within its Legal Service, had been responsible for drafting the amicus curiae letter, they had been able to work on a single document, since the contributions of each person involved could be made with visible revisions (‘track changes’) so that they could be identified until the drafting of the document in question was finalised.

52 Lastly, the Commission maintains that it is materially impossible to record and preserve the large number of digital files generated by its day-to-day activities. The Commission stated that, in accordance with its internal policy on managing records and archives, only records that contain important information which is not short-lived or that concern aspects requiring a follow-up are registered and kept.

53 As regards, more specifically, the emails exchanged within the Commission, it stated during the hearing that such communications are automatically deleted after a reasonable period. Thus, the Commission pointed out that the Latvian authorities’ request for the Commission to intervene had been received on 19 September 2016 and that the amicus curiae letter had been submitted on 26 January 2017, which would explain why, in the searches carried out by the Commission following the initial application of 6 October 2021 and the confirmatory application of 23 December 2021, no emails covered by the applicant’s application for access had been identified.

54 In that regard, although it is apparent from the case-law that, in order that the right of access to documents may be exercised effectively, which derives from the requirement for transparency, the institutions concerned must, in so far as possible and in a non-arbitrary and predictable manner, draw up and retain documentation relating to their activities (judgment of 25 April 2007, WWF European Policy Programme v Council, T‑264/04, EU:T:2007:114, paragraph 61), it cannot be maintained in the present case that the Commission infringed that requirement since the final version of the amicus curiae letter was kept. Internal communications and drafts relating to such a letter cannot themselves be of such an importance or extraordinary nature, apart from the letter itself, as to justify their registration and retention (see, to that effect, judgment of 20 September 2019, Dehousse v Court of Justice of the European Union, T‑433/17, EU:T:2019:632, paragraph 47).

55 In those circumstances, the Commission provided a plausible explanation as to the non-existence of other documents concerning the Commission’s internal communications and the drafts of the amicus curiae letter.

(3) The communications concerning a new agent joining the team responsible for the case

56 The applicant submits that it is unlikely that, contrary to what the Commission contends, there are no documents concerning a new agent joining the team responsible for the case.

57 He disputes the Commission’s position, arguing that there was a discrepancy between, on the one hand, an internal consultation note from the Commission’s Legal Service to its Directorate-General for Competition, which was communicated as document 2 in the reply to the initial application and which contained the names of two members of staff indicated as being the agents responsible for the case and, on the other, the fact that three agents signed the amicus curiae letter.

58 The Commission has explained that document 2 was drafted at an early stage when a decision to intervene as amicus curiae had not yet been taken. Thus, in that first letter, the names of two representatives of the Legal Service appear only as contact points. It claims that it was only after it had decided to intervene in the Latvian proceedings that it formally appointed the three agents who would represent it for the purposes of those proceedings. The Commission concludes from this that no new agent was appointed, but that the three agents who signed the amicus curiae letter were appointed as soon as the decision to intervene was taken.

59 In that regard, it should be noted that document 2 does in fact consist of a letter from the Commission’s Legal Service to the Directorate-General for Competition, dated 26 September 2016, which concerns a proposal by that service regarding the possible intervention by the Commission in the Latvian proceedings. That intervention had just been requested by the Latvian authorities on 19 September 2016. The Legal Service requests a reply by 6 October 2016, while indicating the names of two ‘responsible agents’ within that service and their internal telephone numbers, clearly for the purpose of giving members of the Directorate-General for Competition the opportunity to contact them, if necessary, for further information.

60 As the Commission rightly submits, a distinction must be drawn between the persons within its Legal Service who were identified at an early stage in the case as contact points and the agents officially appointed, in order to represent it before the Augstākā tiesa (Supreme Court), in its intervention as amicus curiae. Thus, the application for leave to intervene submitted to the Augstākā tiesa (Supreme Court) on 14 November 2016 was indeed signed by three Commission agents, as was the amicus curiae letter itself on 22 December 2016. In those circumstances, the applicant’s premiss that a third ‘new’ agent had been appointed to represent the Commission has no factual basis and cannot therefore be regarded as evidence of the existence of a document concerning that appointment.

61 Accordingly, the applicant has not succeeded in rebutting, by way of relevant and consistent evidence, the Commission’s assertion as to the non-existence of other documents covered by the application for access and, in any event, the Commission has provided plausible reasons for such non-existence.

62 In the light of the foregoing, the first plea in law must be rejected in its entirety.

2. The second plea in law, alleging an error of law and a manifest error of assessment on the part of the Commission in granting only partial access to certain documents and infringement of the obligation to state reasons

63 In the context of the present plea, the applicant alleges, in essence, a failure to state reasons, a manifest error of assessment in that the Commission redacted certain data from the documents to which it had granted partial access and an error of law in its application of Article 4(1)(b) of Regulation No 1049/2001.

64 In the contested decision, it is stated, in Section 2.1, entitled ‘Protection of privacy and the integrity of the individual’, that the documents identified under numbers 1.1, 1.2, 5, 7, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.14, 7.15, 7.16, 7.17, 7.18, 7.19, 7.20, 7.21, 8.1, 10, 10.1, 11 and 11.1 contain personal data such as the names, surnames and signatures of natural persons and other information from which the identity of those persons can be deduced. Moreover, it is stated that the documents identified under numbers 1, 2, 4, 5, 8, 8.1, 9 and 14 contain the names, surnames, contact details and signatures of persons who do not form part of the senior management of the Commission. In that regard, the Commission stated that, by virtue of the exception provided for in Article 4(1)(b) of Regulation No 1049/2001, those data, as they were personal data, could not be disclosed, in accordance with the EU legislation applicable in the field of access to documents.

65 The Commission, relying on the case-law, invoked inter alia Article 9(1)(b) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39), which provides that personal data are to be transmitted only if the recipient establishes inter alia that it is necessary to have the data transmitted for a specific purpose in the public interest and that it is proportionate to transmit those data. Thus, the Commission noted that, in his application, the applicant had merely stated that it was crucial to understand who was responsible for the case and on what date. It submits that those factors are merely abstract and generic reasons which cannot, therefore, justify a legitimate need to transmit personal data for a specific purpose in the public interest, nor can they justify the proportionality of such transmission.

66 Thus, the Commission concluded that it was not possible to grant access to those personal data under Article 4(1)(b) of Regulation No 1049/2001.

67 As regards, in the first place, the statement of reasons for the contested decision, it must be held, in the light of that decision, that the Commission gave sufficient reasons for its refusal to transmit the data which it had redacted from the documents which it sent to the applicant.

68 The Commission described the data in question, being names, surnames, contact details and other information which makes it possible to identify individuals, by stating that they constituted personal data and that, therefore, their disclosure could undermine the privacy and integrity of those individuals. It also stated that, since the applicant had not provided reasons demonstrating a legitimate need for the transmission of those data for a specific purpose in the public interest, it could not disclose them, in accordance with the applicable legislation.

69 Accordingly, the complaint alleging failure to state the reasons for the contested decision, with regard to the redaction of personal data from the documents transmitted by the Commission, must be rejected.

70 As regards, in the second place, the merits of the Commission’s refusal to transmit those data, the following should be noted.

71 First, in accordance with Article 4(1)(b) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of privacy and the integrity of the individual, in particular in the light of EU legislation regarding the protection of personal data.

72 Secondly, according to the case-law, where an application is made seeking access to personal data within the meaning of Article 3(1) of Regulation 2018/1725, the provisions of that regulation become applicable in their entirety (see, to that effect, judgment of 16 July 2015, ClientEarth and PAN Europe v EFSA, C‑615/13 P, EU:C:2015:489, paragraph 44 and the case-law cited).

73 Thus, personal data may be transmitted to a third party on the basis of Regulation No 1049/2001 only where that transmission, first, fulfils the conditions laid down in Article 9(1)(a) or (b) of Regulation 2018/1725 and, secondly, constitutes lawful processing in accordance with the requirements of Article 5 thereof (see judgment of 7 September 2022, Saure v Commission, T‑448/21, not published, EU:T:2022:525, paragraph 32 and the case-law cited).

74 In that regard, it should be recalled that the Court has previously held that derogations from the protection of personal data must be interpreted strictly (judgment of 25 September 2018, Psara and Others v Parliament, T‑639/15 to T‑666/15 and T‑94/16, EU:T:2018:602, paragraph 68).

75 Under Article 9(1)(b) of Regulation 2018/1725, personal data are to be transmitted to recipients established in the Union other than Union institutions and bodies only if the recipient establishes that it is necessary to have the data transmitted for a specific purpose in the public interest and if the controller, where there is any reason to assume that the data subject’s legitimate interests might be prejudiced, establishes that it is proportionate to transmit the personal data for that specific purpose after having demonstrably weighed the various competing interests.

76 Accordingly, it is apparent from the very wording of that provision that it makes the transmission of personal data subject to the fulfilment of a number of cumulative conditions.

77 It is for the applicant seeking access to establish that it is necessary to have the personal data transmitted for a specific purpose in the public interest. In order to satisfy that condition, it must be established that the transmission of personal data is the most appropriate of the possible measures for attaining the applicant’s objective, and that it is proportionate to that objective, which means that the applicant must submit express and legitimate reasons (see judgment of 19 September 2018, Chambre de commerce et d’industrie métropolitaine Bretagne-Ouest (port de Brest) v Commission, T‑39/17, not published, EU:T:2018:560, paragraph 42 and the case-law cited). It follows that to apply the condition consisting in demonstrating the necessity of the transmission of personal data for a specific purpose in the public interest is to recognise the existence of an exception to the rule laid down by Article 6(1) of Regulation No 1049/2001, according to which the applicant is not obliged to justify his or her request for access (see, to that effect, judgment of 15 July 2015, Dennekamp v Parliament, T‑115/13, EU:T:2015:497, paragraph 55).

78 Moreover, if the applicant seeking access has established that it is necessary to have the personal data transmitted for a specific purpose in the public interest, it is then for the institution concerned to determine that there is no reason to assume that the transmission in question might prejudice the legitimate interests of the data subject and, in such a case, to demonstrably weigh the various competing interests in order to assess the proportionality of the requested transmission of personal data (see, to that effect, judgment of 16 July 2015, ClientEarth and PAN Europe v EFSA, C‑615/13 P, EU:C:2015:489, paragraph 47 and the case-law cited).

79 In the present case, first, it should be noted that the data redacted by the Commission consist of names, surnames, handwritten signatures, contact details and other information which makes it possible to identify third-party individuals in the documents in question and members of its staff who do not hold management positions and third parties who are not public figures. The applicant does not dispute that that information, the disclosure of which he seeks, is personal data.

80 Secondly, in his application for access to the documents, the applicant, in order to justify his request, merely stated that it was crucial for him to understand exactly who was working on that case at each stage of the procedure leading to the adoption of the contested decision.

81 In that regard, it should be noted, as the Commission has done, that that argument, on which the applicant relies, is worded using general and abstract terms. The applicant does not establish any specific and concrete link between the names, surnames, handwritten signatures, contact details and other information which makes it possible to identify third-party individuals and members of the Commission’s staff and any purpose in the public interest. The applicant’s argument also fails to explain how such information demonstrates the necessity for the transmission of the personal data which had been redacted from the documents to which he had access.

82 As rightly maintained by the Commission, such abstract and general arguments cannot establish a legitimate need for a specific purpose in the public interest, which is the first of the conditions laid down in Article 9(1)(b) of Regulation 2018/1725.

83 The applicant’s argument that the signatories of the amicus curiae letter are acting on behalf of the Commission and, in so far as they hold sufficiently senior positions, reasons of accountability and transparency justify disclosure of their personal data, cannot succeed.

84 It is precisely because the agents signed on behalf of the Commission and it is the Commission which takes responsibility for the amicus curiae letter that the necessity of the transfer of the personal data of its agents cannot be established, in the absence of specific and concrete circumstances justifying such a transfer.

85 Moreover, as regards the objective of transparency referred to by the applicant, it should be noted that such an objective, which is relied on in a generic and abstract manner, cannot demonstrate the need to transfer personal data. It follows from the case-law that no automatic priority can be conferred on the objective of transparency over the right to protection of personal data (see judgment of 25 September 2018, Psara and Others v Parliament, T‑639/15 to T‑666/15 and T‑94/16, EU:T:2018:602, paragraph 91 and the case-law cited).

86 Since the conditions laid down by Article 9(1)(b) of Regulation 2018/1725 are cumulative and the first of those conditions, concerning the necessity to have personal data transmitted for a specific purpose in the public interest, is not satisfied, it must be held that Article 4(1)(b) of Regulation No 1049/2001 permits non-disclosure of the personal data which were redacted from the documents to which the applicant had access, without it being necessary to examine the other conditions laid down by Article 9(1)(b) of Regulation 2018/1725.

87 In those circumstances, the second plea in law must be rejected in its entirety.

3. The third plea in law, alleging infringement of the obligation to state reasons, an error of assessment and an error of law as a result of the Commission’s application of the second indent of Article 4(2) of Regulation No 1049/2001

88 In essence, the applicant claims that, when, in the contested decision, the Commission refused access to 14 documents that are part of the case file of the Latvian court proceedings, it infringed the obligation to state reasons and the second indent of Article 4(2) of Regulation No 1049/2001. It is therefore necessary to assess, first, the arguments put forward in support of the complaint alleging infringement of the obligation to state reasons and, secondly, those put forward in support of the complaint alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001.

89 By the contested decision, the Commission refused access to a number of documents, stating that they formed part of the Latvian judicial case file and that the Latvian authorities opposed such access. The Commission based that refusal on the second indent of Article 4(2) of Regulation No 1049/2001, concerning the protection of court proceedings and legal advice, in the light of the response of those authorities from which those documents originated. In that regard, the Commission stated that those authorities objected to the disclosure of some of the documents concerned on the ground that they were part of a judicial case file and that, in accordance with the applicable national legislation, access to them was restricted, even after the case had been closed. It stated that, after examining the Latvian authorities’ reply, it could conclude that those authorities based their refusal on the exemption provided for in the second indent of Article 4(2) of Regulation No 1049/2001. In addition, it stated that it considered that the arguments put forward by those authorities justified, prima facie, such a refusal, in particular in order to protect the commercial interests of the parties to the national judicial proceedings and the integrity of the judicial proceedings themselves.

90 In the light of the foregoing, it must be held that the Commission provided the applicant with sufficient information to enable him to determine whether the contested decision, by which the Commission refused access to some of the documents requested, relying on the exemption provided for in the second indent of Article 4(2) of Regulation No 1049/2001, was well founded or whether it was vitiated by an error permitting its validity to be contested.

91 Moreover, the statement of reasons for the contested decision enables the Court to review the lawfulness of that decision.

92 Consequently, and in the light of the case-law cited in paragraph 15 above, the complaint alleging infringement of the obligation to state reasons must be rejected.

(b) The complaint alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001

93 Article 4(5) of Regulation No 1049/2001 provides that a Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.

94 In the present case, the Republic of Latvia has made use of the option given to it by Article 4(5) of Regulation No 1049/2001 and requested the Commission not to disclose the documents requested, which it had sent to the Commission for the purposes of its intervention before the Augstākā tiesa (Supreme Court) as amicus curiae. That Member State based its objection in particular on the exception relating to the protection of court proceedings and legal advice, provided for in the second indent of Article 4(2) of that regulation.

95 In that regard, as far as the scope of the objection made by a Member State under Article 4(5) of Regulation No 1049/2001 is concerned, it follows from the case-law that that provision entitles the Member State concerned to object to the disclosure of documents originating from it only on the basis of the substantive exceptions laid down in Article 4(1) to (3) of that regulation and if it gives proper reasons for its position (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 59, and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 50).

96 Moreover, it must be borne in mind that the EU Courts have already held that, as regards the institution to which an application for access to a document has been made, from the point of view of the person requesting access, the intervention of the Member State concerned under Article 4(5) of Regulation No 1049/2001 does not affect the nature of a European Union act of the decision subsequently addressed to him or her by the institution in reply to the request he or she has made to it for access to a document in its possession (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 60, and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 51).

97 The institution to which an application for access to documents has been made, as the maker of a decision to refuse access to documents, is therefore responsible for the lawfulness of the decision. It has thus been held that that institution cannot accept a Member State’s objection to disclosure of a document originating from that State if the objection gave no reasons at all or if the reasons relied on by that State for refusing access to the document in question did not refer to the exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001 (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 61, and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 52).

98 It follows that, before refusing access to a document originating from a Member State, the institution concerned must examine whether that State has based its objection on the substantive exceptions in Article 4(1) to (3) of Regulation No 1049/2001 and has given proper reasons for its position. Consequently, in the procedure for the adoption of a decision to refuse access, the institution must make sure that those reasons exist and refer to them in the decision it makes following that procedure (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 62; of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 53; and of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraph 55).

99 As is apparent in particular from Articles 7 and 8 of Regulation No 1049/2001, the institution is itself obliged to give reasons for a decision refusing a request for access to a document. Such an obligation means that the institution must, in its decision, not merely record the fact that the Member State concerned has objected to disclosure of the document applied for, but also set out the reasons relied on by that Member State to show that one of the exceptions to the right of access provided for in Article 4(1) to (3) of that regulation applies. That information will enable the person who has asked for the document to understand the origin and grounds of the refusal of his request and the competent court to exercise, if need be, its power of review (see judgment of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraph 56 and the case-law cited).

100 However, according to the case-law regarding Article 4(5) of Regulation No 1049/2001, the institution to which a request for access to a document has been made does not have to carry out an exhaustive assessment of the Member State’s decision to object by conducting a review going beyond the verification of the mere existence of reasons referring to the exceptions in Article 4(1) to (3) of Regulation No 1049/2001 (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 63, and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 54). The institution must, however, check whether the explanations given by the Member State appear to it, prima facie, to be well founded (judgments of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 54, and of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraph 57).

101 To insist on such an exhaustive assessment could lead the institution to which a request for access to a document has been made, after carrying out the assessment, wrongly to communicate the document in question to the person requesting access, notwithstanding the objection, which has been duly reasoned, of the Member State from which the document originated (judgments of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 64; of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 55; and of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraph 58).

102 Thus, the institution’s obligation to conduct a careful examination must lead it to check whether, in the light of the circumstances of the case and of the relevant rules of law, the reasons given by the Member State for its objection were capable of justifying prima facie such refusal and, accordingly, whether those reasons made it possible for that institution to assume the responsibility conferred on it under Article 8 of Regulation No 1049/2001. It is a matter of preventing the institution from adopting a decision which it does not consider to be defensible since it is the author of that decision and is therefore responsible for its lawfulness (see judgment of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 70 and the case-law cited).

103 It is in the light of those preliminary observations that the Court must examine the applicant’s arguments challenging the contested decision refusing him access to 14 documents (documents 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.10, 7.11, 7.14, 7.15, 7.16, 7.17, 7.20 and 7.21, as identified in Section 2.2 of the contested decision), relating to the Latvian proceedings, which were transmitted to the Commission so that it could prepare for its participation in those proceedings as amicus curiae.

(2) The Commission’s obligation to verify whether the explanations given by the Member State appeared to it, prima facie, to be well founded

104 The applicant complains that the Commission did not examine whether or demonstrate that disclosure of the documents in question would undermine the protection of court proceedings, within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001, by merely relying on consultations with the Latvian authorities.

105 In the present case, it is apparent from the contested decision, as summarised in paragraph 89 above, that the Commission did not confine itself to referring to the objection of the Latvian authorities. Contrary to what the applicant claims, the Commission examined the arguments put forward by the Republic of Latvia in order to justify the refusal to disclose the documents in question under the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001. Moreover, it is apparent from that decision that, contrary to what the applicant claims, the Commission did carry out an assessment, on the basis of the arguments put forward by the authorities of that Member State, before concluding that, prima facie, the refusal of access appeared to be justified, on the basis of that exception, in that disclosure of those documents could undermine the commercial interests of the parties to the national judicial proceedings and the integrity of the judicial proceedings themselves.

106 Furthermore, the applicant’s arguments challenging the level of scrutiny adopted by the Commission cannot succeed. As is apparent from the case-law referred to in paragraph 100 above, the Commission is not required to carry out an exhaustive review of the issue ex novo; rather it merely carries out a prima facie review of the justification for refusing access.

107 In so far as the applicant complains that the Commission based its decision on Article 28 of the Latvian Law on Judicial Power, which it is said to have interpreted incorrectly, it must be noted that it is apparent from the contested decision that the Commission based its decision to refuse access to certain documents on the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001 and not on provisions of Latvian law. It is true that the Commission, referring to the reasoning put forward by the Latvian authorities, referred to the fact that those authorities had noted that, under Article 28 of the Latvian Law on Judicial Power, the documents in a judicial case file were considered to be confidential and access to them was restricted even after the final judicial decision in the case. However, the Commission, following its examination of the reasons for the Latvian authorities’ objections, concluded that access to the documents in question had to be refused on the basis of the second indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of court proceedings.

108 The applicant also points to the imprecise nature of the explanations concerning the Latvian authorities which the Commission consulted in relation to the present application for access to documents. In that regard, it should be borne in mind that Article 4(5) of Regulation No 1049/2001 provides that a Member State may request the institution not to disclose a document originating from that Member State without its prior agreement. Accordingly, the State entity from which the documents originate and the State body issuing the objection are irrelevant for the purposes of applying that article. In any event, it is clear from the contested decision that the Commission contacted the Permanent Representation of the Republic of Latvia which, subsequently, contacted the Augstākā tiesa (Supreme Court), which was described by the Commission as the usual official channel in such situations.

109 It is also irrelevant that the applicant was one of the parties to the Latvian proceedings in question. That factor does not alter the fact that the documents held by the Commission were sent to it by the Augstākā tiesa (Supreme Court) and must therefore be regarded as originating from the Republic of Latvia, within the meaning of Article 4(5) of Regulation No 1049/2001 (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 61). Moreover the right of access to documents, as provided for by Regulation No 1049/2001, is protected objectively, irrespective of the situation or interests of the person requesting access in relation to the documents requested (see, to that effect, judgment of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 82).

110 Furthermore, the applicant complains that the Commission did not give reasons for the difference in treatment between the documents forming part of the Latvian judicial case file to which access was granted and those to which access was refused. In that regard, it is sufficient to point out, as is apparent from paragraphs 69 and 92 above, that the contested decision was sufficiently reasoned as regards the refusal to grant full or partial access to some of the documents requested.

111 In so far as the applicant criticises the Commission for not having specified, for each of the undisclosed documents, the reasons justifying such non-disclosure, it should be borne in mind that, contrary to what the applicant claims, the Commission was not required to carry out a specific and individual examination of the documents to which access was refused, following the Latvian authorities’ reply (see, to that effect, judgment of 8 February 2018, POA v Commission, T‑74/16, not published, EU:T:2018:75, paragraph 61).

112 Accordingly, the applicant’s arguments concerning the Commission’s failure to comply with its obligation to conduct a careful examination of the Latvian authorities’ objection must be rejected.

(3) The merits of the Commission’s assessment relating to the application, prima facie, of the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001

113 The applicant submits that the Commission wrongly relied on the exception relating to the protection of court proceedings, whereas, in the present case, the Latvian proceedings had already been closed.

114 In that regard, it should be noted that, where a Member State relies on Article 4(5) of Regulation No 1049/2001 and puts forward grounds for refusal listed in Article 4(1) to (3) thereof, it is within the jurisdiction of the EU judicature to review, on application by a person to whom the institution to which the application was made has refused to grant access and for his or her judicial protection, whether that refusal could have been validly based on those exceptions, regardless of whether the refusal results from an examination of those exceptions by the institution itself or by the Member State concerned. Where access is refused on the basis of Article 4(5) of that regulation, the Courts of the European Union therefore carry out a full examination of the Commission’s decision to refuse, which is based on the substantive assessment by the Member State concerned of the applicability of the exceptions laid down in Article 4(1) to (3) of that regulation, even if that institution, in this case the Commission, has refused access to a document originating from a Member State after finding, on the basis of a prima facie examination, that, in its view, the reasons for objection put forward by that Member State were not relied on in a manifestly inappropriate manner (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 52 and the case-law cited).

115 It should also be borne in mind that, under the second indent of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of court proceedings, unless there is an overriding public interest in disclosure of the document in question.

116 The protection of court proceedings requires, in particular, that the principle of equality of arms is observed and that the sound administration of justice and the integrity of court proceedings are guaranteed (judgment of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 38).

117 In the present case, it is common ground that access was refused to 14 documents (documents 7.2 to 7.7, 7.10 and 7.11, 7.14 to 7.17, 7.20 and 7.21, as identified in Section 2.2 of the contested decision) which constituted written pleadings of the parties drawn up in the context of proceedings before the Latvian courts between the applicant and a third-party company. Those documents were transmitted to the Commission by the Latvian authorities in order to enable it to intervene in the dispute as amicus curiae.

118 Moreover, as is apparent from the contested decision, when it was adopted, the Latvian authorities had informed the Commission that the national proceedings in question had been closed, which is not disputed by the parties.

119 Thus, it is necessary to examine, in accordance with the case-law cited in paragraph 114 above, whether, in the present case, the contested decision, which is based on the Latvian authorities’ substantive assessment of the applicability of the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001, could have been validly based on that exception, in so far as it sought to ensure compliance with both the principle of equality of arms and the principle of the sound administration of justice, within the meaning of the case-law cited in paragraph 116 above.

120 First, the Latvian authorities relied on the need to protect the commercial interests of the parties to the proceedings. Such an interest differs from that protected by the second indent of Article 4(2) of Regulation No 1049/2001, which seeks to ensure compliance with the principle of equality of arms and the principle of the sound administration of justice and integrity of court proceedings. Thus, the mere fact that the documents at issue contain business secrets or commercially sensitive information does not, in any event, explain how access to those documents could specifically and actually continue to undermine the court proceedings, which were closed at the time when the contested decision was adopted.

121 While it is conceivable that a document containing business secrets could fall within the scope of one or other of the exceptions provided for in Article 4 of Regulation No 1049/2001, such as the exception relating to the protection of commercial interests, the Latvian authorities would have had to verify in the light of the content of the documents in question whether such an exception was applicable and, if that were the case, rely on it, in order to justify their objection to disclosure of the documents in question, a situation in which the Commission would have been in a position to carry out its prima facie review of the application of that other exception. The mere fact that those documents may contain business secrets which have been revealed in the context of the court proceedings, which have now been closed, is not sufficient to justify the application to the documents in question of the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgment of 12 October 2022, Saure v Commission, T‑524/21, EU:T:2022:632, paragraph 67).

122 Secondly, the Latvian authorities stated that disclosure of the documents in question could undermine the integrity of the proceedings themselves and the Commission accepted that argument.

123 When the Commission adopted the contested decision, the judicial proceedings in Latvia were already closed, as the Latvian authorities themselves had acknowledged in their communication with the Commission, as referred to in the contested decision. In those circumstances, disclosure of the written pleadings of the parties to those proceedings does not appear prima facie to be liable to affect the principle of equality of arms. No imbalance liable to affect the parties to those proceedings appears to be capable of resulting from such disclosure, since those proceedings had already been closed. Similarly, disclosure of the parties’ written pleadings, at a time when the proceedings had already been closed, does not appear prima facie to be liable to disturb the serenity of the exchanges between the parties and the deliberations of the court concerned.

124 The Court of Justice has held that, although the disclosure of pleadings lodged in pending court proceedings was presumed to undermine the protection of those proceedings, because of the fact that the pleadings constituted the basis on which the Court of Justice carried out its judicial activities, that is not the case where the proceedings in question have been closed by a court decision (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 130).

125 It follows that the application of the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001 is necessarily limited in time in so far as it precludes the disclosure of documents only for as long as, having regard to their content, the risk of undermining court proceedings persists (see judgment of 12 October 2022, Saure v Commission, T‑524/21, EU:T:2022:632, paragraph 35 and the case-law cited).

126 Once the judicial proceedings have come to an end, there is no longer any reason to presume that disclosure of the pleadings lodged in those proceedings may undermine the protection of those proceedings. Admittedly, the Court of Justice has not ruled out the possibility that disclosure of pleadings relating to court proceedings which are closed but connected to other proceedings which remain pending may create a risk that the latter proceedings might be undermined, in particular in circumstances where, by such disclosure, the arguments of a party to pending proceedings would be disclosed (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 132 to 135).

127 However, in the present case, the Latvian authorities have not put forward any arguments or evidence to establish that access to the written pleadings of the parties in the Latvian proceedings in question, which had already been closed on the date of the contested decision, could have infringed the principle of equality of arms, the sound administration of justice or the integrity of court proceedings in the context of other pending proceedings with which the proceedings already closed have a relevant link or a close connection (see, to that effect, judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraphs 64 and 65).

128 In those circumstances, the contested decision cannot be based on the grounds for objection submitted by the Latvian authorities which clearly did not fall within the scope of the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001, as interpreted by the case-law.

129 That conclusion cannot be called into question by the Commission’s arguments, which are based on the fact that, since the documents in question relate to national proceedings and the national rules providing for their confidentiality in order to preserve the integrity of such proceedings, it could interpret the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001 only in a manner consistent with the national provisions relied on by the Member State from which the documents in question originate.

130 First, the fact that the documents to which access is refused are the subject of national proceedings or proceedings before the Courts of the European Union is irrelevant as regards the application of Article 4(5) of Regulation No 1049/2001, read in conjunction with the exemption provided for in the second indent of Article 4(2) of that regulation. It is apparent from the case-law that such an exemption may be relied on by the Commission in respect of documents originating from a Member State and relating to proceedings pending before the national courts and that the examination carried out by the EU Courts is a full examination of the application of the exception laid down by Regulation No 1049/2001 in the light of the case-law applicable to that regulation (see, to that effect, judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraphs 52 and 71).

131 Secondly, as the Commission itself acknowledged at the hearing, the application by it of Article 4 of Regulation No 1049/2001 cannot be interpreted in the light of national procedural provisions or of the national authorities’ interpretation of the applicable rules. As has been pointed out in paragraph 102 above, it is the Commission which assumes responsibility for the lawfulness of its decision to refuse access to documents, pursuant to Regulation No 1049/2001 (see, to that effect, judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 41).

132 Thirdly, while it is true that sincere cooperation between the Commission and the Member States is very important in the context of the implementation of rules of EU law, including Regulation No 1049/2001, it is precisely because of such sincere cooperation that the Commission cannot simply reiterate the justifications put forward by the Member State which has made use of the possibility granted by Article 4(5) of Regulation No 1049/2001. Rather, that institution is required to ensure, in the context of the dialogue to be carried on between it and the Member States, that those rules can be applied effectively and in accordance with the case-law developed by the EU judicature (see, to that effect, judgments of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 85, and of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 50).

133 Moreover, and in any event, it should be noted, as is apparent from the contested decision, that the Latvian authorities, relying on Article 28 of the Latvian Law on Judicial Power in support of their objection, stated that the documents forming part of a judicial case file were subject to restricted access after the case had been closed. Contrary to the Commission’s contention, it does not follow that access to the documents in question must necessarily be totally refused. In that regard, there is no evidence in the file which makes it possible to determine the extent to which such restricted access could have been reconciled with other exceptions laid down in Regulation No 1049/2001, which would have been open to the Commission to establish, in the context of the dialogue with the Latvian authorities, when that Member State made use of the possibility granted by Article 4(5) of that regulation.

134 In the light of the foregoing, the third plea in law put forward by the applicant must be upheld and, consequently, the contested decision must be annulled in so far as it refused access to documents 7.2 to 7.7, 7.10 and 7.11, 7.14 to 7.17, 7.20 and 7.21, as identified in Section 2.2 of that decision, without there being any need to examine the fourth plea in law, concerning the existence of an overriding interest justifying disclosure of the documents, which presupposes that such an exception is applicable.

4. The fifth plea in law, alleging infringement of Article 41 of the Charter of Fundamental Rights, in that the Commission failed to grant the applicant access to the file

135 In essence, the applicant submits that, by refusing him access to some of the documents requested, the Commission refused him access to the file concerning him and, as a result, infringed his rights of defence.

136 As a preliminary point, it should be recalled that Article 41 of the Charter of Fundamental Rights provides for the right to sound administration. In accordance with Article 41(2) of the Charter of Fundamental Rights, that right includes, first, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, and, secondly, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy.

137 In the present case, the applicant, in his application dated 6 October 2021, stated that he based that application on any applicable legal basis, in particular as regards his right of access to the file. By contrast, in his confirmatory application of 23 December 2021, the applicant expressly requested access to all the documents relating to the Commission’s intervention as amicus curiae in the Latvian national proceedings between him and a third-party company, on the basis of the right of access to documents of the institutions provided for in Regulation No 1049/2001. The applicant stated that his application was based, in particular, on Article 2(1) of Regulation No 1049/2001 and on Article 6(1) of that regulation.

138 Accordingly, the applicant cannot validly criticise the Commission, in the context of an action against the contested decision, concerning public access to documents on the basis of Regulation No 1049/2001, for not having granted him a right of access to the file on the basis of Article 41(2)(b) of the Charter of Fundamental Rights (see, to that effect, judgment of 20 December 2023, OCU v SRB, T‑496/18, not published, EU:T:2023:857, paragraph 38).

139 In any event, assuming that, despite the wording of the confirmatory application, the application for access to documents submitted by the applicant must be understood as also being based on his right of access to the file, it must be noted that such a right of access to the file, as a right of the defence, is protected by Article 41(2) of the Charter of Fundamental Rights and is a corollary of the right to sound administration.

140 In that regard, it has been held that the right of access to the file is the corollary of the principle of respect for the rights of the defence in the context of proceedings initiated against a person which may well culminate in a measure adversely affecting that person (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68, and of 13 September 2018, UBS Europe and Others, C‑358/16, EU:C:2018:715, paragraphs 60 and 61).

141 In the present case, it must be noted that the fact that the Commission decided to intervene as amicus curiae in the context of national judicial proceedings, even though the applicant was himself a party to those proceedings, cannot be regarded as falling within the scope of proceedings initiated by the Commission against the applicant or proceedings concerning him. Thus, in the absence of such proceedings, the applicant cannot rely on genuine rights of defence as against the Commission. Similarly, the application for access to documents made by the applicant, under Regulation No 1049/2001, cannot give rise to proceedings against him or concerning him in the context of which he could assert rights of defence (see, to that effect and by analogy, judgment of 13 December 2018, Transavia Airlines v Commission, T‑591/15, EU:T:2018:946, paragraphs 48 and 49 (not published)).

142 In those circumstances, the fifth plea in law relied on by the applicant, alleging infringement of Article 41 of the Charter of Fundamental Rights, must be rejected.

5. The sixth plea in law, alleging non-compliance with the time limit laid down in Article 8(1) and (2) of Regulation No 1049/2001

143 The applicant submits that the procedure leading to the adoption of the contested decision was vitiated by the time limit laid down in Article 8(1) of Regulation No 1049/2001 being exceeded.

144 Article 8 of Regulation No 1049/2001, which concerns the processing of confirmatory applications, is worded as follows:

‘1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively.

2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

3. Failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the EC Treaty.’

145 It should be recalled that the procedure for access to documents comprises two stages. The response to an initial application for access to documents is only an initial statement of position, conferring on the applicant the right to request the Commission to reconsider the position in question, and only the measure adopted by the Commission in response to a confirmatory application, which replaces the initial statement of position, is a decision and is capable of being the subject of an action for annulment under Article 263 TFEU (order of 15 February 2012, Internationaler Hilfsfonds v Commission, C‑208/11 P, not published, EU:C:2012:76, paragraphs 29 and 30, and judgment of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraphs 34 to 36).

146 In the present case, the applicant alleges infringement of the time limits laid down in Article 8(1) and (2) of Regulation No 1049/2001 when the Commission adopted the reply to his confirmatory application.

147 It is true that the Commission does not deny that the time limits laid down in the abovementioned provisions were not observed.

148 However, it should be noted that the time limits laid down in Articles 7 and 8 of Regulation No 1049/2001 merely aim to achieve the swift processing of applications for access to documents and to expedite the disclosure of the documents requested where their disclosure is possible (judgment of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraph 85).

149 Thus, the Commission’s failure to reply within the prescribed time limits resulted in an implied rejection decision, in accordance with Article 8(3) of Regulation No 1049/2001, which could have been challenged by the applicant.

150 The applicant submits that he did not bring an action against the implied refusal decision which was made after the expiry of the time limits laid down in Article 8 of Regulation No 1049/2001 since the Commission’s communications led him to consider that the decision was imminent.

151 Those arguments cannot succeed. It should be borne in mind that, in accordance with the case-law, the time limit laid down by Article 8(1) of Regulation No 1049/2001 is mandatory and cannot be extended save in the circumstances provided for in Article 8(2) of that regulation, without depriving that article of all practical effect, since the applicant could not know precisely the date from which he could bring the action or complaint provided for in Article 8(3) of the same regulation (judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 39).

152 It follows that, in the present case, successive letters from the Commission cannot validly alter the consequences of the Commission’s failure to reply within the prescribed time limits, which must be regarded as having given rise to an implied decision to refuse access (see, to that effect, judgment of 25 March 2015, Sea Handling v Commission, T‑456/13, not published, EU:T:2015:185, paragraph 34).

153 That said, the fact that, on expiry of the period laid down in Article 8(1) of Regulation No 1049/2001, the Commission’s failure to reply must be considered, in accordance with Article 8(3) of that regulation, as an implied refusal decision does not have the effect of depriving the Commission of the power to adopt an express refusal decision (judgment of 25 March 2015, Sea Handling v Commission, T‑456/13, not published, EU:T:2015:185, paragraph 35).

154 The mechanism of an implied refusal decision was established in order to counter the risk that the administration would choose not to reply to an application for access to documents, and not to render unlawful every late decision. On the contrary, following an implied refusal decision, the administration has the power to provide, even belatedly, an express reply to an application by a citizen. That approach is consistent with the function of the mechanism of the implied refusal decision, which is to enable citizens to challenge by an action for annulment the inaction on the part of the administration with a view to obtaining a reasoned decision (see, to that effect, judgment of 25 March 2015, Sea Handling v Commission, T‑456/13, not published, EU:T:2015:185, paragraph 36).

155 Thus, it has been held that failure to comply with the time limit laid down in Articles 7 and 8 of Regulation No 1049/2001 does not have the effect of depriving the institution of the power to adopt a decision and does not in itself taint a decision refusing access to documents with unlawfulness justifying its annulment (see judgment of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraph 86 and the case-law cited).

156 It follows from the foregoing that the Commission was entitled to adopt the contested decision and that that decision, although out of time, cannot be annulled on account of the procedural irregularity constituted by the failures to comply with the abovementioned time limits, however regrettable they may be.

157 In the light of the foregoing, the plea alleging infringement of Article 8(1) and (2) of Regulation No 1049/2001 must be rejected.

158 It follows from all the foregoing considerations that, on the basis of the third plea in law, the contested decision must be annulled in so far as it refused, on the basis of the second indent of Article 4(2) of Regulation No 1049/2001, access to documents 7.2 to 7.7, 7.10 and 7.11, 7.14 to 7.17, 7.20 and 7.21, as identified in Section 2.2 of that decision.

159 The applicant asks the Court to request the Commission, by way of a measure of organisation of procedure or of inquiry, to produce, for the purposes of review of the contested decision, first, all the documents to which it refused access and, secondly, unredacted versions of the documents which it has partially disclosed.

160 In that regard, it should be borne in mind that the Court is the sole judge of any need to supplement the information available to it concerning the cases before it and that it is for the Court to assess the relevance of a request for a measure of inquiry to the subject matter of the dispute and the need to do so (see judgment of 12 July 2023, Eurecna v Commission, T‑377/21, EU:T:2023:398, paragraph 80 and the case-law cited).

161 In the present case, as is apparent from the foregoing considerations, it must be held that the information in the file is sufficient to enable the Court to give a ruling in the present action for annulment, it having been able to rule on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings.

162 Accordingly, the application for a measure of organisation of procedure or of inquiry must be rejected.

163 Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.

164 Since the action has been partly upheld, each party must be ordered to bear their own costs.

1. Annuls Decision C(2022) 9584 final of the European Commission of 12 December 2022 in so far as it refused access, on the basis of the second indent of Article 4(2) 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, to documents 7.2 to 7.7, 7.10 and 7.11, 7.14 to 7.17, 7.20 and 7.21, as identified in Section 2.2 of that decision;

3. Orders each party, Mr Rems Kargins and the Commission, to bear their own costs.

(a) The complaint alleging infringement of the obligation to state reasons as regards the list of requested documents

(b) The complaints based on the alleged incompleteness of the list of documents provided by the Commission

(2) The Commission’s internal emails and the preparatory drafts of the amicus curiae letter

(3) The communications concerning a new agent joining the team responsible for the case

3. The third plea in law, alleging infringement of the obligation to state reasons, an error of assessment and an error of law as a result of the Commission’s application of the second indent of Article 4(2) of Regulation No 1049/2001

(b) The complaint alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001

(2) The Commission’s obligation to verify whether the explanations given by the Member State appeared to it, prima facie, to be well founded

(3) The merits of the Commission’s assessment relating to the application, prima facie, of the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001

4. The fifth plea in law, alleging infringement of Article 41 of the Charter of Fundamental Rights, in that the Commission failed to grant the applicant access to the file

5. The sixth plea in law, alleging non-compliance with the time limit laid down in Article 8(1) and (2) of Regulation No 1049/2001

Court of Justice of the European Communities (including Court of First Instance Decisions)