Breyer v REA (Appeal - Access to documents of the institutions of the European Union - Protection of commercial interests - Horizon 2020 - Judgment) [2023] EUECJ C-135/22P (07 September 2023)

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(Appeal – Access to documents of the institutions of the European Union – Regulation (EC) No 1049/2001 – First indent of Article 4(2) – Exception to the right of access – Protection of commercial interests – Framework Programme for Research and Innovation ‘Horizon 2020’ (2014-2020) – Documents relating to the ‘iBorderCtrl: Intelligent Portable Border Control System’ research project – Decision of the European Research Executive Agency (REA) refusing access to certain information – Overriding public interest)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 February 2022,

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

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

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

composed of D. Gratsias, President of the Chamber, M. Ilešič and I. Jarukaitis (Rapporteur), Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By his appeal, Mr Patrick Breyer asks the Court of Justice to set aside the judgment of the General Court of the European Union of 15 December 2021, Breyer v REA (T‑158/19, ‘the judgment under appeal’, EU:T:2021:902), by which the General Court dismissed in part his action for annulment of the decision of the European Research Executive Agency (REA) of 17 January 2019 (ARES (2019) 266593) (‘the decision at issue’) refusing to grant him access to certain documents relating to the ‘iBorderCtrl: Intelligent Portable Control System’ project (‘the iBorderCtrl project’), established in the context of the Framework Programme for Research and Innovation ‘Horizon 2020’ (2014-2020) (‘the Horizon 2020 programme’).

2 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) lays down the principles, conditions and limits of the right of access to documents of those institutions.

‘Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union [(“the Charter”)].’

4 Article 2(1) of that regulation provides that any citizen of the European Union has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in that regulation.

5 Article 4 of Regulation No 1049/2001, entitled ‘Exceptions’ provides in paragraph 2 thereof:

‘The institutions shall refuse access to a document where disclosure would undermine the protection of:

– commercial interests of a natural or legal person, including intellectual property,

6 Article 6(1) of that regulation provides that ‘the applicant is not obliged to state reasons for the application’.

7 The first subparagraph of Article 23(1) of Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1) provides:

‘Executive agencies shall be subject to Regulation [No 1049/2001] when it receives a request for access to a document in its possession.’

8 Regulation (EU) No 1290/2013 of the European Parliament and of the Council of 11 December 2013 laying down the rules for participation and dissemination in ‘Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020)’ and repealing Regulation (EC) No 1906/2006 (OJ 2013 L 347, p. 81) was repealed with effect from 1 January 2021, namely after the adoption of the decision at issue, by Regulation (EU) 2021/695 of the European Parliament and of the Council of 28 April 2021 establishing Horizon Europe – the Framework Programme for Research and Innovation, laying down its rules for participation and dissemination, and repealing Regulations (EU) No 1290/2013 and (EU) No 1291/2013 (OJ 2021 L 170, p. 1). Consequently, that first regulation remains, in any event, applicable in the present case.

‘Subject to the conditions established in the implementing agreements, decisions or contracts, any data, knowledge and information communicated as confidential in the framework of an action shall be kept confidential, taking due account of Union law regarding the protection of and access to classified information.’

‘Without prejudice to Article 3, the [European] Commission shall, upon request, make available to the Union institutions, bodies, offices or agencies, any Member State or associated country, any useful information in its possession concerning results generated by a participant in an action that has received Union funding, provided that both the following conditions are met:

(b) the participants have not provided sound and sufficient reasons for withholding the information concerned.

‘2. Subject to any restrictions due to the protection of intellectual property, security rules or legitimate interests, each participant shall through appropriate means disseminate the results it owns as soon as possible. The grant agreement may lay down time limits in this respect.

Any additional dissemination obligations shall be laid down in the grant agreement and indicated in the work programme or work plan.

With regard to the dissemination of results through scientific publications, open access shall apply under the terms and conditions laid down in the grant agreement. …

With regard to the dissemination of research data, the grant agreement may, in the context of the open access to and the preservation of research data, lay down terms and conditions under which open access to such results shall be provided, in particular in [European Research Council (ERC)] frontier research and FET (Future and Emerging Technologies) research or in other appropriate areas, and taking into consideration the legitimate interests of the participants and any constraints pertaining to data protection rules, security rules or intellectual property rights. In such cases, the work programme or work plan shall indicate if the dissemination of research data through open access is required.

Prior notice of any dissemination activity shall be given to the other participants. Following notification, a participant may object if it demonstrates that its legitimate interests in relation to its results or background would suffer significant harm by the intended dissemination. In such cases, the dissemination may not take place unless appropriate steps are taken to safeguard those legitimate interests. The grant agreement shall lay down time limits in this respect.

3. For the purposes of monitoring and dissemination by the Commission or the relevant funding body, participants shall provide any information on their exploitation and dissemination related activities, and provide any documents necessary in accordance with the conditions laid down in the grant agreement. Subject to the legitimate interests of the participants which have provided the information, such information shall be made publicly available. The grant agreement shall, inter alia, lay down time limits with respect to such reporting obligations.’

12 The background to the dispute and the content of the decision at issue are set out in paragraphs 1 to 8 of the judgment under appeal. For the purposes of the present proceedings, they may be summarised as follows.

13 On 19 April 2016, the REA concluded, in the context of the Horizon 2020 programme, grant agreement No 700626 (‘the grant agreement’) with the members of a consortium to finance the iBorderCtrl project for a period of 36 months from 1 September 2016.

14 The aim of the project was to test new technologies intended to increase the efficiency of the EU’s external border control management by ensuring faster processing of travellers and quicker detection of illegal activities.

15 On 5 November 2018, the appellant submitted to the Commission, on the basis of Regulation No 1049/2001, an application for access to a number of documents relating both to the authorisation of the project and to its progress. That application was sent to the REA on 7 November 2018.

16 On 23 November 2018, the REA informed the appellant that it would grant his application for access in full for one of the requested documents, which was publicly accessible, and in part for another requested document. The REA also stated that it was rejecting his application for access in respect of the other documents drawn up in the course of the project, on the basis of, first, the protection of the privacy and the integrity of the individual, in so far as some of those documents contained personal data of natural persons participating in the project, and, second, the protection of the commercial interests of the members of the consortium, within the meaning of the first indent of Article 4(2) of that regulation.

17 On 26 November 2018, the appellant submitted a confirmatory application for access, accepting that the names of the natural persons involved in the project would be redacted.

18 By the decision at issue, the REA granted partial access to some of the requested documents and rejected his application for access as to the remainder.

19 By application lodged at the Registry of the General Court on 15 March 2019, Mr Breyer brought an action for annulment of the decision at issue, criticising the REA, first, as regards the documents relating to the authorisation of the iBorderCtrl project, for having failed to take a position on his application for access and, second, as regards the documents relating to the progress of that project, for having granted him only partial access to a first series of documents and for having refused him access to a second series of documents, relying on the protection of the commercial interests of the members of the consortium.

20 In support of that action, the appellant had put forward two pleas in law, only the first of which is relevant to the examination of the present appeal.

21 That plea, by which the appellant criticised the REA for refusing access or granting only partial access to the documents relating to the progress of the project, was divided into two parts, the first alleging that the protection of commercial interests was not undermined, within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001, and the second alleging the existence of an overriding public interest justifying disclosure of the documents at issue pursuant to the last clause of Article 4(2) of that regulation.

22 By the judgment under appeal, the General Court annulled the decision at issue in part and dismissed Mr Breyer’s action as to the remainder.

23 By decision of the President of the Court of Justice of 4 July 2022, the Commission was granted leave to intervene in support of the form of order sought by the REA.

26 In support of his appeal, the appellant relies on a single ground of appeal, alleging, in essence, that the General Court erred in law in weighing up the interests involved by wrongly refusing him full access to the documents relating to the implementation of the iBorderCtrl project, even though the public interest in access to information outweighs the commercial interests of the participants in that project.

28 The REA submits, first of all, that since the General Court, by the judgment under appeal, upheld the appellant’s claims in part, the appellant cannot take advantage of the setting aside of that judgment in its entirety.

29 It goes on to submit that the appellant’s claims relate not to the reasoning of the judgment under appeal but to the broader political context of the appeal, that they are based on general considerations and that they do not clearly identify the errors of law allegedly committed by the General Court. According to the REA, the appellant has merely repeated the arguments, mostly of a substantive nature, already relied on before the General Court, referring, moreover, to factual aspects not established by that court and without describing precisely, in accordance with Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice, the pleas in law and the legal arguments.

30 Lastly, the REA maintains that the subject matter of the appeal is unlawfully broadened, in so far as the appellant merely criticised paragraphs 181 to 205 of the judgment under appeal, without describing the pleas in law and legal arguments which he intended to rely on against the other parts of that judgment.

31 The appellant contends that he does not challenge the judgment under appeal in so far as it upheld his action, that his appeal describes the errors made by the General Court, without merely repeating the arguments put forward at first instance, and that the proper balancing of the interests involved is not a question of fact, but a point of law, amenable to review by the Court of Justice.

32 First, it should be noted at the outset that, although he had initially claimed that the judgment under appeal should be set aside in its entirety, the appellant stated, in paragraph 2 of his observations on the Commission’s statement in intervention, that he was seeking to have that judgment set aside only in so far as it had not upheld his action.

33 Furthermore, it follows from the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union that an appeal may be brought only by a party which has been unsuccessful, in whole or in part, in its submissions.

34 Since the appellant was unsuccessful in part, his appeal against the judgment under appeal in so far as it dismisses in part his action against the decision at issue is therefore admissible to that extent.

35 Second, it should be borne in mind that it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must indicate precisely the contested paragraphs of the judgment under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned may be inadmissible (see judgment of 23 November 2021, Council v Hamas, C‑833/19 P, EU:C:2021:950, paragraph 50 and the case-law cited).

36 Thus, an appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court does not satisfy the requirements to state reasons under those provisions (judgment of 17 December 2020, Germany v Commission, C‑475/19 P and C‑688/19 P, EU:C:2020:1036, paragraph 33).

37 However, the points of law examined at first instance may be discussed again in the course of an appeal, provided that the appellant challenges the interpretation or application of EU law by the General Court. Indeed, if an appellant could not thus base his or her appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgments of 3 December 2015, Italy v Commission, C‑280/14 P, EU:C:2015:792, paragraph 43, and of 10 November 2022, Commission v Valencia Club de Fútbol, C‑211/20 P, EU:C:2022:862, paragraph 32 and the case-law cited).

38 It must be held, in that regard, that, by his appeal, which indicates precisely the contested paragraphs of the judgment under appeal, the appellant is not seeking a mere re-examination of the application submitted to the General Court, but challenges the grounds set out in specific paragraphs of that judgment, by putting forward legal arguments to show that the General Court erred in law as regards the classification of the public interests relied on in support of the request for disclosure and the weighing up of the interests involved.

39 It is common ground that the classification for legal purposes of an act or measure by the General Court is a question of law which may be raised on appeal (judgment of 12 May 2022, Klein v Commission, C‑430/20 P, EU:C:2022:377, paragraph 41). In the present case, that is true of the question whether the interests relied on by the appellant must be regarded as overriding public interests within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001.

40 Third, the REA’s line of argument alleging that the appeal is inadmissible on the ground that its subject matter was unlawfully broadened must be rejected. As has been pointed out in paragraph 32 of the present judgment, in the final version of his written pleadings, the appellant seeks to have the judgment under appeal set aside only in so far as it dismissed his action in part. Moreover, the fact that he challenges only certain paragraphs of the judgment under appeal cannot constitute a ground for inadmissibility of his appeal or ground of appeal.

42 The appellant’s single ground of appeal, by which he claims that, by refusing him full access to the documents concerning the implementation of the iBorderCtrl project even though there was an overriding public interest justifying their disclosure, the General Court infringed Article 4(2) of Regulation No 1049/2001, is divided in two parts.

43 In the first place, the appellant submits that the General Court erred in finding that he had not established the existence of an overriding public interest within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001, even though he was relying on various interests which, in his view, met that classification.

44 First, the appellant submits that there is an overriding public interest justifying access to documents relating to a project entirely financed by public funds.

45 The public interest in being able to discuss the appropriateness of public funding of a project which is as invasive and questionable as the iBorderCtrl project is all the more characterised by the fact that public funding could be devoted to other, less controversial research projects.

46 Second, the appellant submits that there is a public interest in examining the scientific basis and reliability of the technology used in the context of the iBorderCtrl project, which is supposed to allow the automated detection of lies by analysing the micro-expressions of travellers’ faces in response to the questions put to them before they enter the European Union.

47 Third, the appellant claims that there is an overriding public interest linked to the impact that the technologies used in the iBorderCtrl project are likely to have on fundamental rights.

48 Transparency is necessary in so far as those technologies require the use of tests and experiments, involve the use of biometric data and may have discriminatory effects, in particular with regard to persons in a vulnerable situation.

49 In addition, according to the appellant, the experimental nature of the iBorderCtrl project means, as in the case of clinical trials, that the public should be informed at the research stage so that a public debate can take place on the relevance of the technologies used and so that ethical and fundamental rights protection issues can be addressed.

50 Fourth, the appellant submits that there is an overriding scientific, media, political and democratic interest in the disclosure of the project documents.

51 In accordance with the ‘principle of the universality of science’, there is a scientific interest in disclosing all the results of the research so that they could be discussed and criticised, especially since there is a scientific debate as to whether the highly controversial technology for the visual detection of lies produces conclusive results.

52 The existence of several studies devoted to those technologies thus demonstrates both the high degree of interest to which they give rise in the scientific environment and the inconclusive nature of their results. The large number of reports on the iBorderCtrl project reveals the high level of media interest in that type of project, while the work of the European Parliament demonstrates the political interest it generates.

53 Furthermore, the technology used, originally intended for border controls, could be deployed in other areas in order to investigate individuals and verify their statements. There is therefore a democratic and political interest in determining whether the use of such mass control technologies, which are currently prohibited, is desirable and whether they should be given a legal basis.

54 The appellant also claims that much of the information on the iBorderCtrl project has already been disclosed, including by participants in the project. According to the appellant, it would not be in the public interest for selective information to be disseminated in that way, without an independent third party being able to carry out objective checks.

55 In those circumstances, the appellant maintains that, in weighing up the interests involved, the commercial interests of the members of the consortium ‘do not weigh particularly heavily’ and should take second place with regard to the public interest in transparency.

56 In particular, the public interest is particularly overriding for documents which have little to do with trade secrets, such as ethical and legal assessments of the technology, public communication plans, the quality management report or documents relating to the authorisation of the research project.

57 In the second place, the appellant submits that the General Court erred in law in holding, in paragraphs 194 to 200 of the judgment under appeal, that (i) the provisions of Regulation No 1290/2013 and of Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020) and repealing Decision No 1982/2006/EC (OJ 2013 L 347, p. 104) and the provisions of the grant agreement were sufficient to satisfy that interest since the participants in the project were obliged to disseminate the results of that project, in particular, by means of freely accessible scientific publications, that the REA carried out communication and publicity activities, for which summaries of reports could be used, (ii) the institutions, bodies, offices and agencies of the European Union and the Member States had a right of access to information, (iii) the lawfulness of the development of that project was reviewed and, lastly, (iv) the ethical and legal assessments of that project were subject to an independent ethics advisor.

58 He submits, first of all, that the obligation to publish imposed on the participants in the research project at issue cannot satisfy the public interest in access to information since all the documents relating to that project should be published, including those relating to the state of the research and to the materials and methods used, and that that obligation does not extend to commercial information considered worthy of protection.

59 According to the appellant, the public, which is financing the project, should have timely access to all information from the research and development phase. That approach is, moreover, consistent with the Commission’s practice for scientific articles related to projects financed under the Horizon 2020 programme and the framework of Regulation No 1290/2013, Article 43(2) of which provides that each participant in that programme is to disseminate as soon as possible, by appropriate means, the results which it owns. The appellant also maintains that Regulation No 1049/2001 does not provide for an exception to the right of access to information for ongoing research and development projects and that the requirements of protecting the commercial interests of participants are not greater during the project than after its completion.

60 Thus, he criticises the General Court for holding that the participants in the iBorderCtrl project could keep secret all the information relating specifically to the system, including that relating to its legality and ethical acceptability, and to all the risks and disadvantages which it presents.

61 He submits, next, that the REA’s communication and publicity activities are also incapable of satisfying the public interest in access to information, since that agency is required to respect the confidentiality of commercially sensitive information and the information it publishes, often of an ‘advertising’ nature, does not permit an independent or critical debate.

62 Lastly, the appellant submits that the right of the institutions, bodies, offices and agencies of the European Union and of the Member States to have access to information cannot satisfy the public interest in being informed because it is not a matter of public access to information.

63 The REA, supported by the Commission, submits, first, that the General Court duly found and stated reasons for the appellant’s failure to demonstrate the existence of an overriding public interest justifying the disclosure of the requested documents and, second, that the appellant has not succeeded in identifying the errors of law allegedly committed by the General Court, capable of calling into question the judgment under appeal.

64 As a preliminary point, it should be noted that the appellant challenges the judgment under appeal only in so far as it refused to recognise the existence of an overriding public interest capable of justifying the disclosure of certain documents or parts of documents in respect of which the REA had concluded that they were covered by the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001.

65 The General Court’s findings, in paragraphs 117, 135, 146, 152, 164, 172 and 178 of the judgment under appeal, that the REA did not err in law in finding that the disclosure of information contained in certain documents or parts of documents was likely to undermine the commercial interests of the members of the consortium, are therefore not called into question in the present appeal, the single ground of which must be examined.

66 As Article 23 of Regulation No 58/2003 expressly provides, executive agencies, such as the REA, are required to comply with the rules laid down in Regulation No 1049/2001.

67 In accordance with recital 1 of Regulation No 1049/2001, that regulation reflects the intention of the European Union legislature, expressed in the second paragraph of Article 1 TEU, to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen (judgment of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 36 and the case-law cited).

68 That core EU objective is also reflected, first, in Article 15(1) TFEU, which provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible, that principle of openness also being expressed in Article 10(3) TEU and in Article 298(1) TFEU, and, second, in the enshrining of the right of access to documents in Article 42 of the Charter (judgment of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 37 and the case-law cited).

69 It can be seen from recital 2 of Regulation No 1049/2001 that openness enables the EU institutions to have greater legitimacy and to be more effective and more accountable to EU citizens in a democratic system. By allowing divergences between various points of view to be openly debated, it also contributes to increasing those citizens’ confidence in those institutions (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 75 and the case-law cited).

70 To that end, Article 1 of that regulation provides that the purpose of that regulation is to confer on the public as wide a right of access as possible to documents of the EU institutions, subject to a system of exceptions based on reasons of public or private interest, which, departing from the principle laid down in that article, must be interpreted and applied strictly (see, to that effect, judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraphs 76 to 78).

71 Among the exceptions to the right of access is that set out in the first indent of Article 4(2) of Regulation No 1049/2001 according to which the EU institutions are to refuse access to a document where disclosure would undermine the protection of ‘commercial interests of a natural or legal person, including intellectual property’, unless there is an overriding public interest in disclosure.

72 It follows that the system of exceptions laid down in Article 4 of that regulation is based on a balancing of the opposing interests in a given situation, that is to say, first, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 42, and of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 63).

73 It is necessary to ascertain, in the present case, whether the General Court erred in law in carrying out that balancing exercise and in refusing to classify the interests relied on by the appellant as overriding public interests justifying disclosure of the documents at issue.

74 In that regard, it should be noted first of all that the General Court rightly stated, in paragraph 187 of the judgment under appeal, that it is for the person claiming the existence of an overriding public interest to rely on specific circumstances to justify the disclosure of the documents concerned (see, to that effect, judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 94).

75 The General Court was also right to recall, in paragraph 188 of the judgment under appeal, that although the overriding public interest capable of justifying the disclosure of a document need not necessarily be distinct from the principles which underlie Regulation No 1049/2001, general considerations alone are not capable of establishing that the principle of transparency is of particularly pressing concern and capable, therefore, of prevailing over the reasons justifying the refusal to disclose the documents (see, to that effect, judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 92 and 93; of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraphs 92 and 93; and of 14 July 2016, Sea Handling v Commission, C‑271/15 P, EU:C:2016:557, paragraph 95).

76 In the first place, it should be noted that the ground of appeal is based in part on general considerations relating to the need to publish all the information relating to publicly funded projects and to the scientific interest in publishing the results of technological research in accordance with the ‘principle of the universality of science’.

77 In that regard, it should be noted that the fact that a research project is financed by EU funds and has as its aim the development of a new technology is, in principle, capable of revealing the existence of a genuine public interest in access to documents relating to that project. However, as has been pointed out in paragraph 75 of the present judgment, setting out such a general ground is not sufficient to establish that that interest must necessarily prevail over the reasons justifying the refusal to disclose those documents.

78 In the second place, it should be noted that the General Court did not deny the existence of a scientific, media and general public interest in the dissemination of information relating to the iBorderCtrl project, but held, in paragraphs 193, 197 and 200 of the judgment under appeal, that that interest was satisfied by the system for dissemination of results provided for by Regulation No 1290/2013 and by the grant agreement.

79 The General Court relied, first, in paragraphs 194 and 195 of the judgment under appeal, on the obligation on the project participants to publish the results and, second, in paragraph 196 of that judgment, on the rights of access of the EU institutions and the Member States to information on the results of the project.

80 As regards the obligation on the project participants, the General Court noted, first of all, that Article 43(2) of Regulation No 1290/2013 and Article 29.1 of the grant agreement imposed an obligation on those participants to disseminate, by appropriate means, the results of the project, subject to any restrictions imposed, inter alia, by the protection of intellectual property, safety rules or legitimate interests.

81 The General Court also found that the extent of the obligation on those participants to disseminate the results of research was specified in the grant agreement. The General Court referred to Article 29.2 of that agreement, which stipulated that open access to scientific publications of peer-reviewed results must be guaranteed, and to Article 38.2.1 of that agreement, which provided that the REA, for its communication and publicity activities, may, in a manner which is consistent with the confidentiality of the information, use information concerning the action, documents, including summaries intended for publication, and services intended for the public. The General Court also referred to Article 20.3(a)(iii) and Article 20.4(a) of the grant agreement, according to which the participants must submit to the REA, together with periodic technical and financial reports, summaries containing, inter alia, an overview of the results and their dissemination, for publication by the REA.

82 As regards the rights of access to information relating to the results of the project, the General Court noted, first, that Article 4 of Regulation No 1290/2013 and Article 36.1 of the grant agreement provided, under the conditions set out therein, for access by the EU institutions, bodies, offices and agencies and by the Member States to information relating to the results of a participant that has received EU funding and, second, that Article 49 of that regulation granted those institutions, bodies, offices and agencies and the Member States rights of access, for the purposes of developing, implementing and monitoring EU policies or programmes, to those results.

83 In that context, it is necessary to ascertain whether the General Court erred in law in finding that the public interests relied on by the appellant in support of his request for disclosure were satisfied by the system for dissemination of results laid down in Regulation No 1290/2013 and in the grant agreement.

84 As has been pointed out in paragraph 79 of the present judgment, the General Court first of all relied on the obligation incumbent on the project participants to publish the results.

85 In that regard, it should be noted, first, that, contrary to what the appellant claims, the General Court did not find that all the information relating specifically to the iBorderCtrl project, including that relating to its lawfulness and its ethical acceptability, could be kept secret.

86 In the light of paragraph 194 of the judgment under appeal, it appears that the General Court merely found that the obligation to disseminate research results imposed on the project participants, laid down in Article 43(2) of Regulation No 1290/2013 and Article 29.1 of the grant agreement, was limited by the protection of intellectual property, safety rules or legitimate interests.

87 As regards, more specifically, the documents relating to the ethical and legal implications of the project, it is apparent from paragraphs 113 to 118 of the judgment under appeal that the General Court upheld the decision at issue only as regards those documents which contained information relating to the tools and technologies actually developed by the members of the consortium in the context of the iBorderCtrl project. By contrast, the General Court annulled that decision in so far as it had refused access to information relating to the general ethical and legal assessment of systems using innovative technological means, such as the automated detection of lies.

88 As regards the appellant’s argument that the criteria developed by the General Court in the judgment under appeal mean that a whole series of documents relating to the results of the project, including, in particular, those relating to the results of the pilot tests, are kept secret, is based on an unjustified extrapolation of the findings of the General Court to documents other than those which were the subject of the request for disclosure and, therefore, of the decision at issue.

89 Second, the appellant’s argument that the obligation incumbent on the project participants to publish the results cannot satisfy the public interest since that obligation does not permit the publication of commercial information considered worthy of protection cannot be accepted either. To uphold that line of argument would be tantamount to presuming that the public interests relied on in support of the request prevail over the interests which justified the refusal of disclosure, whereas, as has been pointed out in paragraph 74 of the present judgment, it is for the person claiming the existence of an overriding public interest to prove it.

90 Third, the comparison made by the appellant with previous ‘similar’ research and development projects, which confirm that the publications of participants in such projects do not allow for public debate, is based on a general consideration, relating to other projects, which is not capable of establishing, specifically as regards the iBorderCtrl project, the inadequacy, in the light of the requirement of transparency, of the information communicated on the basis of Regulation No 1290/2013 and the grant agreement.

91 Fourth, the appellant does not demonstrate how the General Court’s analysis that it was possible to hold an informed public discussion of the various aspects of the iBorderCtrl project under development on the basis of the results disseminated under that regulation and that agreement is vitiated by an error of law.

92 In that regard, it should first be noted that it does not follow from the judgment under appeal that the General Court considered that Regulation No 1049/2001 provided for a general exception to the right of access to information for ongoing research and development projects.

93 Next, it should be noted that, by his line of argument, the appellant relies, in essence, on the existence of an overriding public interest, within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001, in being aware of all the information relating to all stages of a publicly funded technological research project, which systematically outweighs the commercial interests of the undertakings participating in that project. That line of argument can succeed only where there is a presumption that such information is deemed to be of overriding public interest. In the absence of such a presumption, as has been pointed out in paragraphs 74 and 89 of the present judgment, it is for the appellant to rely on specific circumstances to justify the disclosure of the documents concerned.

94 In that regard, it must be held that nothing in the ground of appeal is capable of establishing that the General Court erred in law in its assessment, in paragraph 202 of the judgment under appeal, that the appellant had failed to demonstrate that, in the present case, the principle of transparency was especially pressing and prevailed over the legitimate interest in the protection of the commercial interests of the members of the consortium participating in the project.

95 Consequently, the General Court did not err in law in finding that the public interests relied on by the appellant could be satisfied by the obligation to publish the results of the iBorderCtrl project imposed on the participants in that project by Article 43(2) of Regulation No 1290/2013 and Article 20.3(a)(iii), Article 20.4(a) and Articles 29.1, 29.2 and 38.2.1 of the grant agreement.

96 By contrast, the General Court erred in finding, in paragraph 196 of the judgment under appeal, that those interests were safeguarded by the right to make available and the right to have access, provided for the institutions, bodies, offices and agencies of the European Union and the Member States in Articles 4 and 49 of Regulation No 1290/2013 and Article 36.1 of the grant agreement, when, first, those rights and, second, the right of access to documents provided for in Regulation No 1049/2001 have neither the same beneficiaries nor the same purposes.

97 Under Article 4(1)(a) and (2) of Regulation No 1290/2013, the right to make available information in the Commission’s possession concerning the results generated by a participant in an action that has received EU funding is reserved to the institutions, bodies, offices and agencies of the European Union and to the Member States. It allows them access, upon request, only to information that is relevant for public policy purposes, which, once disclosed, is to remain confidential unless it becomes public or is made available publicly by the participants. It is also apparent from Article 49(1) of Regulation No 1290/2013 that the rights of access to the results of a participant who has received EU funding provided for in that provision are reserved to the institutions, bodies, offices and agencies of the European Union for the ‘duly justified purpose of developing, implementing and monitoring Union policies or programmes’.

98 On the contrary, the right of access provided for by Regulation No 1049/2001 is conferred, under Article 2(1) of that regulation, on any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State. Furthermore, in accordance with the second sentence of Article 6(1) of that regulation, the applicant is not obliged to state reasons for his or her application for access.

99 As the appellant rightly submits, the right to make information available provided for in Article 4 of Regulation No 1290/2013 cannot therefore satisfy the public interest relied on in support of an application for access to documents made on the basis of Regulation No 1049/2001 by a citizen of the Union or a natural or legal person residing or having its registered office in a Member State.

100 However, the grounds set out by the General Court in paragraph 196 of the judgment under appeal are included purely for the sake of completeness in relation to those set out in paragraphs 194 and 195 of that judgment, the General Court having correctly held, as is apparent from paragraphs 84 to 95 of the present judgment, that the public interests relied on by the appellant could be satisfied by the publication obligation imposed on the participants in research projects by Article 43(2) of Regulation No 1290/2013 and Article 20.3(a)(iii), Article 20.4(a), and Articles 29.1, 29.2 and 38.2.1 of the grant agreement. Such obligations, imposed directly on those participants, make it possible to make public information relating to the results of research, irrespective of any dissemination actions that may be taken by the European Union or the Member States following the exercise of their right of access to that information.

101 Accordingly, the argument put forward by the appellant in that regard must be rejected. In accordance with the settled case-law of the Court of Justice, on an appeal, a plea that is directed against a ground in the judgment under appeal, the operative part of which is sufficiently founded in law on other grounds, is ineffective and must, therefore, be rejected (see, to that effect, judgments of 8 May 2003, T. Port v Commission, C‑122/01 P, EU:C:2003:259, paragraph 17 and the case-law cited, and of 6 October 2021, Banco Santander v Commission, C‑52/19 P, EU:C:2021:794, paragraph 127).

102 In the third place, as regards the appellant’s argument based on the existence of an overriding public interest resulting from the adverse effects that the iBorderCtrl project is likely to cause to fundamental rights, the General Court rejected that argument, holding, in paragraph 198 of the judgment under appeal, that the relevant provisions applicable to research and innovation projects financed under the Horizon 2020 programme imposed on participants the obligation to respect the fundamental rights and principles recognised, in particular, by the Charter, and on the Commission an obligation to ensure respect for those rights and principles. It added that those requirements were, moreover, reflected in the fact that the legal and ethical assessments of the iBorderCtrl project were specifically included in the mandatory stages of its development, and ethical issues were themselves overseen by an independent ethics advisor.

103 The General Court referred in particular to Article 19 of Regulation No 1291/2013, Article 14 of Regulation No 1290/2013, read in the light of recital 9 thereof, and Article 34 of the grant agreement.

105 The fact that the participants in the iBorderCtrl project are required to respect the fundamental rights and principles recognised, in particular, by the Charter, and that the Commission is ordered to ensure that those rights and principles are respected, is not such as to give rise to a presumption that those rights and those principles have not been infringed and that there is no overriding public interest in the disclosure of documents relating to that project by reason of the possible impact of the techniques used on the protection of fundamental rights.

106 Although it reflects the importance attached by the EU legislature to the preservation of those rights, a reminder of the obligation on the participants in a project to respect fundamental rights and of the Commission’s obligation to ensure that those rights are respected cannot justify depriving third parties of the possibility of requesting access to those documents in order, in particular, to verify that the participants in the project and the EU institutions have complied with their respective obligations.

107 However, the ground set out in paragraph 198 of the judgment under appeal is included purely for the sake of completeness.

108 The General Court found in paragraph 199 of that judgment, first, that the appellant did not claim that the fundamental rights of the persons involved in the pilot tests in the context of the iBorderCtrl project had not been respected and, second, that the public interest on which he relied, which in reality concerned a possible future deployment under real conditions of systems based on techniques and technologies developed within the framework of that project, would be satisfied by the dissemination of the results under the conditions laid down in Regulation No 1290/2013 and the grant agreement.

109 The appellant does not allege distortion of his own arguments at first instance.

110 Furthermore, for the reasons set out in paragraphs 84 to 95 of the present judgment, the General Court cannot be criticised for having erred in law in finding that, in so far as the iBorderCtrl project was merely a research project under development, the sole purpose of which was to test technologies, the public interest relied on by the appellant could be satisfied by the dissemination of the results of the project under the conditions laid down in Regulation No 1290/2013 and the grant agreement.

111 It follows from all the foregoing considerations that the ground of appeal must be rejected as, in part, ineffective and, in part, unfounded.

113 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

114 Since the REA has applied for costs and the appellant has been unsuccessful, the latter must be ordered to bear his own costs and to pay those incurred by the REA.

115 In accordance with Article 140(1) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the Commission, which has intervened in the proceedings, must bear its own costs.

2. Orders Mr Patrick Breyer to bear his own costs and to pay those incurred by the European Research Executive Agency (REA);

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Breyer v REA (Appeal - Access to documents of the institutions of the European Union - Protection of commercial interests - Horizon 2020 - Judgment) [2023] EUECJ C-135/22P (07 September 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C13522P.html Cite as: ECLI:EU:C:2023:640, EU:C:2023:640, [2023] EUECJ C-135/22P

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