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Case Law

General Court (Tenth Chamber), Case T-158/19, 15 December 2021

European Union
Decision date
Deciding body
General Court of the European Union
Deciding body (Original name)
General Court of the European Union
Type of Court (material scope)
European Court
Type of Court (territorial scope)
Supranational Court
Appellate on fact and law
Project area
AI and data protection
Law area
Privacy / data protection
Fundamental rights protection
Claim partially upheld/rejected

General Summary

The General Court of the European Union acknowledged that the European Commission's Research Executive Agency (REA) had inadequately evaluated several access to information requests made by digital rights activist and Member of the European Parliament, Patrick Breyer. Mr. Breyer had sought access to documents pertaining to the EU-funded iBorderCtrl project, which aimed to develop an "artificial intelligence"-based video lie detector" for screening individuals entering the EU to ascertain truthfulness in their responses. The REA had declined access, citing concerns that disclosure could compromise the commercial interests of the consortium of companies involved in developing the technology.

In its ruling, the General Court determined that the potential harm to the consortium members' commercial interests outweighed the public interest in disclosing the requested information, particularly as the documents in question pertained to the project's early stages. The Court indicated that public interest in disclosure might arise once the research and innovations had reached completion.

Critically, the Court's decision underscored the balance between transparency and protecting commercial interests, indicating that disclosure should be considered in light of the project's progression and completion.

Facts of the case

REA initiated the iBorderCtrl project in April 2016, aiming to develop an EU-funded system for controlled border management, including emotion recognition technologies like a video lie detector. Patrick Breyer, invoking Regulation 1049/2001, requested access to documents related to the project's grant agreements and development. REA granted partial access but refused one for certain documents citing exemptions protecting personal data and the commercial interests of consortium members (Art. 4 of the Regulation).

Breyer accepted disclosure without personal information, but REA maintained refusal, citing regulations safeguarding commercial interests. Breyer appealed REA's denial to the General Court of the EU in March 2019, alleging violations of Regulation 1049/2001's provisions on exceptions, processing of initial applications, and processing of confirmatory applications.

Measures, actions, remedies claimed
  • Appeal of the REA’s denial of access to information
Individual / Collective enforcement
Individual action
Nature of the parties
  • Private individual
  • Public
Type of procedure
Ordinary procedure
Reasoning of the deciding court

In the case concerning the REA’s handling of information requests under Regulation 1049/2001, the court addressed several key issues pertaining to the obligations under Articles 7 and 8, as well as the applicability and exceptions under Article 4 of the same Regulation. The dispute primarily centered around the applicant's request for documents related to the iBorderCtrl project, a subject matter that engaged both procedural and substantive legal principles regarding public access to EU institutional documents.

The court found that the REA erred in its interpretation and application of Articles 7 and 8 by presuming the applicant had withdrawn his request for specific documents without clear evidence to support such an assumption. The applicant had explicitly stated his request was a follow-up to his initial inquiry, seeking access to the grant agreements related to the iBorderCtrl project. By ignoring this part of the request and focusing only on a subset of documents, the REA failed to fully assess the request as mandated by the Regulation. This misstep led the court to deem REA's response invalid insofar as it pertained to the access to authorisation documents of the iBorderCtrl project.

Further complicating the legal landscape was the interaction between Regulation 1049/2001, which governs public access to EU documents, and Regulation 1290/2013, which sets forth rules for participation and dissemination in Horizon 2020, the EU Framework Programme for Research and Innovation. The REA contended that the latter was lex specialis and thus should take precedence, particularly concerning the confidentiality of documents related to Horizon 2020 projects. The applicant, however, argued for a harmonious interpretation that would allow for the maximum possible disclosure of documents, in line with the overarching transparency principles embedded in Regulation 1049/2001.

The court sided with a nuanced interpretation that acknowledges the need for both Regulations to coexist without one unduly overshadowing the other. It underscored that while confidentiality of certain documents is protected, this does not grant carte blanche to withhold information. Instead, a careful examination is required to determine if partial or full disclosure is possible without harming the interests protected under the relevant Regulations. This approach emphasises the principle of maximum disclosure while respecting the legitimate confidentiality interests of consortium members involved in Horizon 2020 projects.

On the substantive issue of whether the requested documents could harm the commercial interests of the consortium members, the court engaged in a detailed analysis. It highlighted that not all information related to a company or its commercial relations automatically falls under the commercial interests exception of Article 4. Instead, a specific harm test must be applied, assessing whether disclosure of the requested information would concretely and effectively damage those interests. The court acknowledged the REA's concerns about potential harm to the consortium's competitive position, intellectual property rights, and ability to attract investment. However, it also noted that the REA's decision to grant only partial access was grounded in a reasonable application of the harm test, balancing the need to protect commercial interests with the principle of transparency.

The argument of an overriding public interest in the release of the documents was carefully considered. The court recognised the importance of public access to information, especially concerning projects funded by EU resources and involving sensitive technologies like biometrics. Yet, it concluded that the applicant had not sufficiently demonstrated that the public interest in disclosure outweighed the potential harm to the commercial interests of the consortium members. The court reasoned that the regulatory framework and grant agreements already strike a balance between transparency, public interest, and the protection of commercial interests.

The court's decision also notably considered the importance of the subject matter at hand: an AI system developed under the iBorderCtrl project. This project, being at the forefront of technological innovation in border control and security, involved the use of advanced artificial intelligence and biometric technologies. The court's deliberation illuminated the broader implications of such technologies, not only from a commercial perspective but also in terms of ethical, societal, and human rights considerations.

Conclusions of the Court

The court concluded that the REA improperly assessed the information requests under Regulation 1049/2001, failing to fully consider the applicant's right to access documents related to the iBorderCtrl project. It ruled that the REA wrongly assumed withdrawal of the request for grant agreement documents, violating Articles 7 and 8. Despite acknowledging the need for confidentiality under Regulation 1290/2013, the court emphasised that transparency and the public interest in disclosing AI and biometric research outcomes funded by EU resources could not override legitimate commercial interests without concrete evidence of an overriding public interest, thus upholding the partial denial of access based on commercial interests protection.

AI system(s) involved
  • All types of AI systems
  • Specific intended purpose AI
  • Machine learning

Fundamental rights involved
  • Freedom of information
  • Freedom to conduct a business
  • Right to asylum
  • Right to non-discrimination
Principles expressly applied
  • Non-discrimination
  • Rule of law
  • Transparency
Balancing techniques and principles

The court used a balancing technique that carefully weighed the principle of transparency and public access to documents against the protection of commercial interests and confidentiality. This technique involved:

  1. Assessment of the Applicant's Request: Evaluating whether the applicant's request for access to documents was clear and whether the REA had grounds to assume any withdrawal of parts of the request without explicit communication from the applicant. The court found that the REA's assumptions were unfounded, emphasising the need for a clear and comprehensive response to all aspects of the request.
  2. Interpretation of Regulations: Determining how Regulation 1049/2001 (on public access to documents) interacts with Regulation 1290/2013 (governing Horizon 2020 projects). The court navigated these regulations by asserting that the principle of maximum disclosure under Regulation 1049/2001 should not be automatically overridden by the confidentiality provisions in Regulation 1290/2013, unless specific harm to protected interests could be demonstrated.
  3. Harm Test for Commercial Interests: Applying a harm test to assess whether releasing the requested documents could indeed harm the commercial interests of the consortium members involved in the iBorderCtrl project. This test required a concrete demonstration of how disclosure would affect the consortium's competitive position, intellectual property rights, and ability to attract investment.
  4. Consideration of Public Interest: Evaluating whether there was an overriding public interest that necessitated the release of the documents, particularly given the project's implications for privacy, ethics, and human rights in the use of AI and biometric technologies. While recognising the public's right to know, the court also noted the necessity of protecting research outcomes and intellectual property to ensure the viability and success of Horizon 2020 projects.
  5. Proportionality and Partial Disclosure: Where possible, the court considered whether partial disclosure could mitigate harm to commercial interests while still fulfilling the public's right to access information. This approach aimed to strike a balance between transparency and the protection of sensitive commercial information.
Judicial dialogue with supranational or foreign courts


Impact on legislation / policy

Not currently

Impact on national case law

Not currently

Case author
Ivo Emanuilov
LIBRe Foundation