The disclosure obligation of article 843a Rv and state aid

disclosure obligation and state aid

In a judgment of 7 December 2022 (in Dutch only), the Rotterdam District Court (District Court) rejected a claim to provide copies of various documents in a dispute concerning allegedly unlawful state aid. This ruling provides the reason to describe the disclosure obligation provided for in article 843a Civil Procedures Act (Rv).

The case

The case concerns the sale of real estate by the Municipality of Rotterdam (Municipality) to property developer Lieke B.V. for one euro. A third party, presumably a property developer just like Lieke B.V., objected. This third party claimed that the District Court should, in a nutshell, rule that the Municipality had acted unlawfully and annul or at least nullify the purchase agreement(s). Indeed, according to the third party, the Municipality had granted state aid and/or violated the notification obligation of article 108(3) TFEU.

As part of the proceedings before the District Court, the third party claimed in a motion based on article 843a Rv that the Municipality and Lieke B.V. should be ordered to provide copies of:

(a)the purchase agreement(s)
(b)the correspondence exchanged between the Municipality and Lieke B.V. regarding the purchase of the real estate
(c)the internal correspondence exchanged by the Municipality and Lieke B.V. in relation to the purchase of the real estate
(d)the valuation reports which the Municipality and/or Lieke had had drawn up to determine the (market) value of both the real estate and the neighbouring properties

District Court’s judgment on the motion

The District Court dismisses the motion of the third party. With regard to document (a), the third party has no interest in the adjudication of its claim, as a copy of the purchase agreement(s) had already been submitted to the District Court. With regard to documents (b) and (c), the third party had not described in sufficient detail which documents its claim specifically related to. With regard to the valuation reports (d), adjudication would lead to an unacceptable violation of the negotiating position of the Municipality and Lieke B.V.

Comments

Application of article 843a Rv

Conditions

A claim based on article 843a Rv, should meet the following cumulative conditions:

1.Legitimate interest
A claimant has a legitimate interest in the requested documents if they are relevant to his legal position, for example to prove a particular aspect of his claim
2.Certain documents
The documents requested must be identified, otherwise the legitimate interest cannot be established
3.Concerning a legal relationship to which the applicant is a party
The documents on which the application is made must relate to a legal relationship to which the claimant is a party: e.g. a wrongful act
Grounds for refusal

A claim that meets the cumulative conditions mentioned above may nevertheless be rejected if a ground for refusal arises:

IConfidentiality obligation
The holder of the requested documents is subject to a confidentiality obligation and he holds the documents in question solely by virtue of his “office, profession or position
IISubstantial grounds
Data concerning sexual orientation, medical status, financial position or confidential business information need not be disclosed: however there must be a strong interest in confidentiality before a request for access is refused.
IIILack of necessity
No necessity exists, if the proper administration of justice is guaranteed even without disclosure of the requested information

Analysis of the grounds for refusal

If the purchase agreement(s) the third party wanted to have access to had actually been submitted to the District Court, a legitimate interest indeed appears to be lacking. By not specifying which correspondence documents the third party wanted to have access to, turned the request into a ‘fishing expedition‘. That is not what article 843a Rv is intended for. And finally, the valuation reports. The District Court held that allowing access would lead to an unacceptable violation of the bargaining position of the Municipality and Lieke B.V. Unfortunately, this ground for refusal was not elaborated on. Thus, it is not clear whether or not it is evidential that providing the valuation reports would actually be detrimental to the Municipality and/or Lieke B.V. The lack of this information led to a different ruling in a judgment of 10 October 2019 (in Dutch only) of the Midden-Nederland District Court (marginals 4.18-419).

Wob and Woo

In principle, information held by the government can also be requested by administrative law. Until 1 May 2022, this was regulated by the Administrative Disclosure Act (Wob). From 1 May 2022, the Open Government Act (Woo) applies for this purpose.

According to Article 1 Woo, “[e]ach person has the right to access public information without having to declare an interest, subject to restrictions imposed by this Act“. There is thus a general right to disclosure, unless one or more grounds for refusal set out in Chapter 5 Woo apply.

Relationship between article 843a Rv and the Wob and Woo

In principle, no one is required to provide access to documents in his or her possession to another person. According to a judgment of 22 August 2006 (in Dutch only) of the Court of Appeal of The Hague, article 843a Rv makes an exception to this main rule. Thus, this article “does not grant rights or freedoms to the person who has certain documents in his possession” (marginal 15). Consequently, we are dealing with a right of access, provided the conditions for granting it are met and no ground for refusal arises.

In the aforementioned judgment of 10 October 2019, the Midden-Nederland District Court ruled that the rejection of a Wob request does not prevent the granting of a claim based on article 843a Rv. “The Wob does not have an exclusive character and does not contain an obligation of secrecy, but contains a regulation giving a right of access to everyone. As a result, the standards applied when granting or rejecting a Wob request cannot be copied one-to-one in civil proceedings based on article 843a Rv” (marginal 4.16). In the explanatory memorandum (“MvT“) to the draft bill for the Woo, article 843a Rv is not explicitly mentioned. However, the annex to the Woo lists special disclosure regimes. If one of these regimes applies, the Woo can be derogated from on the basis of Article 1 of this Act. Article 843a Rv is not mentioned in the annex as a special disclosure regime. This seems logical to me, as a successful reliance on article 843a Rv does not result in the information in question becoming public to anyone. Seen this way, article 843a Rv has no relationship with the Woo (see §§ 2.2 and 4.9 MvT).

* photo by pexels via pixabay.com

door | 11 april 2023 | Staatssteun

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