In Case T-20/99,
Denkavit Nederland BV, established at Voorthuizen, Netherlands,
represented by E.A. Buys, of the Arnhem Bar,
Commission of the European Communities, represented by P. van
Nuffel, U. Wölker and W. Wils, of its Legal Service, acting
as Agents, with an address for service in Luxembourg at the office
of C. Goméz de la Cruz, also of the Legal Service, Wagner
APPLICATION for annulment of the Commission decision of 17 November
1998 refusing to grant the applicant access to a report concerning
measures taken to combat swine fever in the Netherlands,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
composed of: B. Vesterdorf, President, M. Vilaras and N. Forwood,
Registrar: H. Jung,
having regard to the written procedure and further to the hearing
on 14 April 2000.
gives the following
1 On 6 December 1993 the Commission and the Council approved
a common code of conduct concerning public access to Council
and Commission documents (OJ 1993 L 340, p. 41; hereinafter `the
code of conduct').
2 On 8 February 1994, in order to ensure the implementation of
the code, the Commission adopted Decision 94/90/ECSC, EC, Euratom
on public access to Commission documents (OJ 1994 L 46, p. 58),
Article 1 of which formally adopts the code of conduct, the text
of which is set out in the Annex to that measure.
3 The code of conduct lays down the following general principle:
`The public will have the widest possible access to documents
held by the Commission and the Council.'
4 Under the heading `Exceptions', the code lists the circumstances
in which an institution may properly refuse a request for access
to documents. It provides as follows:
`The institutions will refuse access to any document whose disclosure
- the protection of the public interest (public security, international
relations, monetary stability, court proceedings, inspections
- the protection of the individual and of privacy,
- the protection of commercial and industrial secrecy,
- the protection of the Community's financial interests,
- the protection of confidentiality as requested by the natural
or legal persons that supplied the information or as required
by the legislation of the Member State that supplied the information.
They may also refuse access in order to protect the institution's
interest in the confidentiality of its proceedings.'
5 In the context of completion of the internal market and in
order to ensure the protection of human and animal health, the
Community adopted a body of measures, including Council Decision
90/424/EEC of 26 June 1990 on expenditure in the veterinary field
(OJ 1990 L 224, p. 19), amended by Council Decision 94/370/EC
of 21 June 1994 (OJ 1994 L 168, p. 31), which lays down inter
alia the detailed rules governing the financial contribution
of the Community to programmes for the eradication of certain
6 Under Article 3(2) of Decision 90/424, the Member State concerned
is to obtain a financial contribution from the Community for
the eradication of animal diseases on condition that the measures
applied immediately comprise at least the isolation of the holding
from the time of suspicion and that, following official confirmation
of the disease, certain measures - defined in that provision
- are adopted.
7 Article 9 of Decision 90/424 provides:
`1. The Commission shall carry out, with the cooperation of the
national competent authorities, on-the-spot checks to ensure,
from a veterinary point of view, that the measures adopted have
2. Member States shall take all necessary steps to facilitate
these checks, and shall, in particular, ensure that the experts
have access to all information and documents necessary for assessing
whether the measures have been carried out.'
8 In 1997 cases of swine fever were reported in various production
regions located in the Netherlands. Shortly thereafter, several
hundred centres of infection were recorded.
9 On 3 March 1997 the Commission adopted Regulation (EC) No 413/97
adopting exceptional support measures for the market in pigmeat
in the Netherlands (OJ 1997 L 62, p. 26), authorising the Netherlands
authorities to grant aid and pledging that 70% of the expenditure
incurred would be financed by the Community budget.
10 Following one of the checks carried out by the Commission,
in August 1997, the findings and proposals made by the inspection
team were set out in a document entitled `Report on Inspection
Visit - the fight against classical swine fever in the Netherlands
in 1997 - Verification of Expenditure within the framework of
Checks of Technical and Financial Implementation' (hereinafter
11 On the basis of Decision 90/424 - specifically, pursuant to
Article 3 thereof - the Commission adopted on 15 December 1997
Decision 98/25/EC on Community financial aid towards the eradication
of classical swine fever in the Netherlands (OJ 1998 L 8, p.
12 Pursuant to Decision 98/25, the Netherlands was granted an
initial advance of ECU 31.3 million to be used to compensate
the owners of the first 195 holdings affected by the disease
in question, subject to production of documentary evidence. In
accordance with the fifth recital in the preamble to the Decision,
that `initial advance [was to] be paid, irrespective of the final
decision concerning the overall contribution and any reductions
therein'. The seventh recital contemplated further financial
assistance for other owners of contaminated animals, subject
to verification, to be carried out by the Commission, that the
Community veterinary rules had been complied with and provided
that the conditions for Community financial assistance were satisfied.
13 By letter of 7 August 1998, the applicant applied to the Commission
for access to the Report.
14 On receiving no response, the applicant submitted, by letter
of 5 October 1998 addressed to the Secretary-General of the Commission,
a request for review, pursuant to Article 2(2) of Decision 94/90.
15 By letter of 17 November 1998 (hereinafter `the contested
decision'), the Secretary-General of the Commission refused the
applicant's request in the following terms:
`1. The disclosure of the above report could undermine the protection
of the public interest (in particular, inspections and investigations).
The Commission's inspection task on the classical swine fever
in the Netherlands is not finished and contacts are ongoing between
the Commission and the Member State concerned. This work has
to be carried out in a climate of mutual confidence. Furthermore,
the report you have applied for refers to alleged infringements
of the Community rules. These allegations need to be brought
to light, and disclosure of the report may undermine legal action
that may need to be undertaken.
2. Moreover, the disclosure could harm the protection of commercial
secrecy, as the report contains detailed data on individual named
16 Subsequent to its adoption of the contested decision, the
Commission adopted Decision 1999/18/EC of 22 December 1998 on
additional Community financial aid towards the eradication of
classical swine fever in the Netherlands (OJ 1999 L 6, p. 18),
granting the Netherlands additional Community financial aid.
Under Article 1 of that Decision, this aid was granted `without
prejudice to the final decision concerning the overall financial
contribution and any reductions necessary'.
17 The third and fourth recitals in the preamble to that Decision
emphasised that `the Commission [was] still checking whether
all the Community veterinary rules [had been] complied with and
whether all the conditions for obtaining Community financial
aid [had been] met' and that `the Dutch authorities [were] also
conducting additional checks of the declarations they [had] made
to the Commission to see whether the conditions laid down in
Decision 90/424/EEC [had been] met, in particular in the light
of the Commission's remarks at [that] stage'.
18 Those are the circumstances in which, by application lodged
at the Registry of the Court of First Instance on 21 January
1999, the applicant brought the present proceedings.
19 Upon hearing the report of the Judge-Rapporteur, the Court
of First Instance (First Chamber) decided to open the oral procedure
without first ordering measures of inquiry.
20 At the hearing on 14 April 2000, the parties presented oral
argument and replied to questions addressed to them by the Court.
Forms of order sought
21 The applicant claims that the Court should: - annul the contested
- order the Commission to pay the costs.
22 The Commission contends that the Court should:
- dismiss the action as unfounded;
- order the applicant to pay the costs.
The first and second pleas: infringement of Decision 94/90 and
of Article 190 of the EC Treaty (now Article 253 EC)
Arguments of the parties
- The public interest exception (inspections and investigations)
23 The applicant maintains that the Commission infringed Decision
94/90 by applying the exception based on protection of the public
24 According to the applicant, the first reason relied upon by
the Commission in the contested decision - the need to preserve
a relationship based on mutual trust with the Netherlands during
the inspection period - has no basis in fact. By the time the
contested decision was adopted, the investigation had already
been closed and there was therefore no longer any need for consultation
with the Netherlands. As early as November 1998, the Commission's
spokesman had indicated that a decision had been taken to apply
a 25% reduction to the Community financial assistance initially
granted, by way of penalty.
25 No weight is to be attached to the fact that the administrative
process for adopting a decision on the final amount of the financial
assistance to be granted to the Netherlands was never brought
to completion. It is not in dispute that this decision remains
pending; the crucial point, however, is that the inspection on
which the Report was based has been definitively closed.
26 As regards the second reason given for applying the public
interest exception, that is to say, the risk that possible court
proceedings might be prejudiced, the applicant maintains that
this, too, lacks foundation in so far as the Member State concerned
already had a copy of the Report and the fact that there were
differences of opinion between that State and the Commission
was public knowledge. Moreover, the Netherlands authorities founded
their refusal of the applicant's request for access to the Report
on instructions received from the Commission.
27 Furthermore, it is clear from Case T-105/95 WWF UK v Commission
 ECR II-313, paragraph 64, that the Commission cannot confine
itself to invoking the possible initiation of an infringement
procedure as justification for refusing access to all the documents
identified in a request made by a citizen. That possibility cannot
be relied on in a case which concerns only the monitoring of
Community expenditure. In the present case, all that the Netherlands
had to fear from that exercise was that certain expenditure would
be disallowed under the procedure for clearance of the accounts
submitted by the Member States for payment by the European Agricultural
Guidance and Guarantee Fund (EAGGF).
28 Lastly, according to the applicant, it is incorrect to maintain
that it is also to be inferred from the reference in the contested
decision to `alleged infringements' that infringements could
have been committed by individuals. The decision concerns individuals
only in so far as it purports to protect their business secrets.
29 The Commission makes the preliminary point that each of the
mandatory exceptions relied on constitutes in itself a sufficient
ground for refusing access to the Report. Consequently, the action
can succeed only if it is held that in both cases the Commission
was wrong in invoking the exception in question.
30 The Commission maintains that it had to apply the public interest
exception in the present case since the document to which access
was requested was directly linked to an inspection exercise.
It states, in particular, that the purpose of that exercise was
to verify that the Netherlands authorities had correctly applied
health measures partly financed by the Community budget or for
which Community financial assistance had been requested. Consequently,
protection of the public interest entailed a duty to ensure the
smooth conduct of the procedure leading to the adoption of a
decision as to whether the expenditure would be allowed or disallowed
under the Community budget, or even a decision to initiate an
31 In that respect, it is clear from the case-law that the Member
States are entitled to expect the Commission to protect the confidentiality
of documents relating to inspection exercises which may give
rise to an infringement procedure, even where a period of time
has elapsed since the closure of the investigation (WWF UK v
Commission, cited above, paragraphs 63 and 64). The same is true
where the inspection at issue is not primarily designed to determine
whether or not there has been a failure to fulfil obligations
with a view to intiating the procedure under Article 169 of the
EC Treaty (now Article 226 EC), but rather to determine whether
certain expenditure may be allowed under the Community budget.
There is a close link between an infringement procedure and the
monitoring of expenditure by the Commission, since the latter
exercise may be carried out both throught the initiation of a
procedure under Article 169 of the Treaty and also in the context
of the clearance of the EAGGF accounts. The principle laid down
in WWF UK v Commission, cited above, applies a fortiori in the
present case, where the decision-making process in relation to
the possible consequences of the inspection had not yet been
completed when the contested decision was adopted.
32 Lastly, the Commission contends that, although the reference
in the contested decision to `alleged infringements' of Community
law primarily concerns infringements attributable to the Netherlands,
it also covers infringements involving individuals. The Report
contains information relating to individuals and observations
regarding the measures taken in different holdings. Accordingly,
its disclosure might prejudice the adoption of measures by the
Netherlands authorities as well as the conduct of national administrative
- The commercial secrecy exception
33 On this point, the applicant maintains, first, that the contested
decision is inadequately reasoned. The decision simply states
that the Report contains detailed data on individual named holdings
where pigs are raised, whereas it should have specified the nature
of that information.
34 In any event, the contested decision infringes the provisions
of Decision 94/90. The term `commercial secrecy' covers information
concerning an undertaking's business activities. Information
of that kind could not appear in the Report. Since the purpose
of the inspection was to monitor the effectiveness of measures
taken by the Netherlands authorities in order to combat swine
fever, the only information regarding undertakings in that sector
would concern the manner in which they had reacted to those measures.
35 Even supposing that the Report contained information which
could be classified as commercial secrets, that would not justify
refusing access to it in its entirety. All that would be necessary
would be to render illegible the names of holdings referred to
in the Report. The risk that the undertakings concerned could
be identified would be non-existent given the number of pig farms
- estimated at 10 000 - in the Netherlands.
36 The applicant concedes that the Commission was not required
to consider whether the applicant could be, or had to be, allowed
access to a version of the Report in which certain passages had
been rendered illegible since it had also invoked another exception,
based on the public interest. However, if the Court of First
Instance were to find that the Commission had erred in doing
so and that the Report did contain commercial secrets, it ought
also to determine whether the applicant was entitled to partial
37 The Commission contends that the decision sets out sufficiently
clearly the reasons for which the information contained in the
Report could not be disclosed. That information comprised data
concerning named holdings. Given the purpose of the Report, it
is clear that the information at issue related to the number
of animals slaughtered, the compensation paid and the failure
to comply with certain obligations. That being so, the application,
by way of a subsidiary ground, of the commercial secrecy exception
38 As for the argument that the Commission should have provided
the applicant with a non-confidential version of the Report,
the Commission replies that, in the circumstances of the case,
there was no need to determine whether partial access could be
granted since other considerations precluded disclosure of any
part of the document.
Findings of the Court
39 The first point to note is that the code of conduct adopted
by Decision 94/90 sets out two categories of exception to the
right of access to Commission documents. The first category,
framed in compulsory terms, comprises the `mandatory exceptions'
which are intended to protect the interests of third parties
or of the general public. The second, framed in discretionary
terms, concerns the internal deliberations of the institution,
in which case solely the interests of the institution are at
stake (WWF UK v Commission, cited above, paragraph 60).
40 On this point, it is important to note that just as the Commission
is entitled to invoke jointly an exception from each category
in order to refuse access to the documents in its possession
(WWF UK v Commission, cited above, paragraph 61; as regards the
Council, see Case T-174/95 Svenska Journalistförbundet v
Council  ECR II-2289, paragraph 114), so may it also jointly
invoke more than one exception from the first category. The possibility
cannot be ruled out that the disclosure of certain documents
may be harmful both to the public interest and to the individual
interests of third parties.
41 In the present case, the contested decision refusing the applicant
access to a report on a Commission inspection is based on the
joint application of two mandatory exceptions relating respectively
to protection of the public interest and to protection of commercial
42 Since the applicant had requested access to a single document,
it must be determined whether or not the Commission was entitled
to invoke either of those exceptions in justification of its
refusal. Under Decision 94/90, each of those exceptions constitutes
in itself sufficient ground for refusal.
43 As regards the first exception relied upon - protection of
the public interest - it should be observed that, among the cases
coming under that exception, the code of conduct expressly contemplates
the case of documents concerning `inspections and investigations'.
44 Clearly, the document requested in the present case related
to one of those activities. It is common ground that it was an
inspection report drawn up by Commission officials following
checks carried out in the Netherlands pursuant to Article 9 of
Decision 90/424, to make certain that the measures prescribed
in that decision to eradicate classical swine fever were being
45 However, the fact that the document at issue concerns an inspection
cannot in itself justify application of the exception invoked.
According to established case-law, any exception to the right
of access to Commission documents covered by Decision 94/90 must
be interpreted and applied strictly (Case C-174/98 P Netherlands
and Van der Wal v Commission  ECR I-0000, paragraph 27).
46 Accordingly, it is for the Court of First Instance to determine
whether, in the present case, the Commission erred in its assessment
that disclosure of the Report could undermine the protection
of the public interest.
47 In that regard, it should be noted that the procedure under
which the inspection exercise took place had not yet been completed
by the time the contested decision was adopted on 17 November
1998. The Commission had by then adopted only one decision on
the Community financial assistance to be granted to the Netherlands,
a decision which authorised an initial advance to that country,
without prejudice to the final amount to be granted or to any
reductions which might be made on the basis of the outcome of
the checks that had yet to be carried out (see paragraph 12 above).
48 Accordingly, although the particular inspection which gave
rise to the report to which access is sought had been completed,
the fact remains that on 17 November 1998 the Commission was
carrying out `inspections and investigations' in order to make
certain that the Community veterinary rules were being complied
with and that the conditions governing the grant of financial
assistance were satisfied. This is confirmed by Decision 1999/18
granting the Netherlands a second provisional advance, which,
although it post-dates the contested decision, makes it clear
that the Commission was still carrying out checks (see paragraph
49 It follows that the Commission could properly form the view
that the inspection work that had to be carried out in the Netherlands
required that the report to which access is sought be withheld
so as to preserve the climate of mutual trust essential to the
smooth conduct of that procedure.
50 The application must therefore be dismissed, there being no
need to determine whether the refusal of access to the Report
is also justified under the other mandatory exception invoked,
relating to the protection of commercial secrecy.
51 Under Article 87(2) of the Rules of Procedure, the unsuccessful
party is to be ordered to pay the costs if they have been applied
for. Since the Commission has applied for costs and the applicant
has been unsuccessful, the applicant must be ordered to pay the
On those grounds,
THE COURT OF FIRST INSTANCE
1. Dismisses the application;
2. Orders the applicant to bear its own costs, and pay the costs
incurred by the defendant.