CELEX: 62001CJ0353
Appeal
Access to documents
Decisions 93/731/EC and 94/90/ECSC, EC, Euratom
Exception relating to the protection of the public interest in the field of international relations
Partial access

By application lodged at the Court Registry on 14 September 2001, Mr Mattila brought an appeal under Article 49 of the EC
Statute of the Court of Justice against the judgment of the Court of First Instance of 12 July 2001 in Case T-204/99
Mattila
v
Council and Commission
[2001] ECR II-2265 (
the contested judgment), by which it dismissed his application seeking principally the annulment of the decisions of the Commission of the European
Communities and the Council of the European Union of 5 and 12 July 1999 respectively, refusing to grant him access to certain
documents (
the contested decisions).
Legal background
The contested judgment stated:
On 6 December 1993, the Council and the Commission approved a Code of Conduct concerning public access to Council and Commission
Documents (OJ 1993 L 340, p. 41, hereinafter
the Code of Conduct) aimed at establishing the principles governing access to the documents they hold.
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.
It defines
document as meaning
any written text, whatever its medium, which contains existing data and is held by the Council or the Commission.
The circumstances which may be relied on by an institution to justify refusing an application for access to documents are
set out in the Code of Conduct in the following terms: The institutions will refuse access to any document where disclosure could undermine:
─
the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections
and investigations), ... They may also refuse access in order to protect the institution's interest in the confidentiality of its proceedings.
the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections
and investigations), ... They may also refuse access in order to protect the institution's interest in the confidentiality of its proceedings.
The Code of Conduct further provides: The Commission and the Council will severally take steps to implement these principles before 1 January 1994.
In order to put that commitment into effect, the Council adopted Decision 93/731/EC of 20 December 1993 on public access to
Council documents (OJ 1993 L 340, p. 43).
Article 4 of Decision 93/731 lists the circumstances which may be relied on by the Council in order to justify its refusing
an application for access to documents. They are the same as those set out in the Code of Conduct.
The Commission, for its part, in order to put its commitment into effect, adopted Decision 94/90/ECSC, EC, Euratom of 8 February
1994 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 an annex to the decision.
Facts of the dispute
The facts of the dispute were summarised in the contested judgment as follows:
On 8 March 1999, the applicant, through his legal adviser, wrote to the Commission's Directorate-General for External Relations:
Relations with the New Independent States, Common Foreign and Security Policy, External Service, requesting access to the
following documents:
─
EU-Russia Joint Committee Agenda, dated 17 February 1997, Doc. Séance No 32 (Working Party on Eastern Europe and Central Asia);
─
Russia, Preparation of the First Cooperation Council under the Agreement on Partnership and Cooperation, 8 December 1997,
dated 14 November 1997 (IA.C.2/SG/jhp D(97));
─
First Cooperation Council EU-Russian Federation (Brussels, 27 January 1998), draft annotated agenda dated 9 January 1998;
─
Annex to the minutes of the meeting of the EU-Russia Cooperation Committee, dated 7 April 1998, Doc. Séance No 23/98 (Working
Party on Eastern Europe and Central Asia);
─
Annotated agenda of the meeting of the EU-Russia Cooperation Committee, dated 20 April 1998, Doc. Séance No 35/98 (Working
Party on Eastern Europe and Central Asia).
By letter of the same date, received on 12 March 1999, the applicant addressed a request to the Council for access to the
following documents:
─
Outcome of Proceedings of the Working Party on Eastern Europe and Central Asia on 23 September 1997, dated 24 September 1997,
No 10859/97;
─
EU-USA background note, Doc. Séance No 27/98. (Document from the EU III section);
─
First EU-Ukraine Cooperation Council, Brussels, 8-9 June 1998, annotated draft agenda dated 15 May 1998. Doc. Séance No 40/98
(Working Party on Eastern Europe and Central Asia);
─
COREU: COEST/CODIA Report on the meeting between the Troika of the Working Party on Eastern Europe and Central Asia and the
United States on 10 February 1998 CFSP/SEC/0203/98;
─
COREU: COEST Caspian Energy: Draft EU/US statement of 11 May 1998 CFSP/PRES/1239/98;
─
COREU: COCEN COEST: Russia/Latvia: Meeting with Mr Primakov on 8 May 1998 CFSP/PRES/LON/1244/98.
Since some of the documents requested had been drawn up jointly by the two institutions, informal contacts took place between
the Council and Commission with a view to coordinating the replies to be given to those requests.
By letter of 19 April 1999, the Council informed the applicant of its decision to grant access to document 10859/97, the
first document mentioned in the applicant's list for the attention of the Council. As regards the other documents to which
access had been sought, the Council rejected the applicant's request, stating that
each of these documents concerns negotiations with certain third countries. Disclosure of these texts could be detrimental
to the EU position in these negotiations or possibly to any future negotiations between the EU and these or other third countries. The Council also stated that the documents in question could not be made available by virtue of Article 4(1) of Decision
93/731.
By letter of the same date the Commission refused to grant access to the documents sought by the applicant. It invoked the
public interest exception in the Code of Conduct and referred to the need to keep discussions between the European Union and
non-member countries confidential.
By letters of 30 April 1999 the applicant, through his legal adviser, made confirmatory applications to the two institutions
pursuant to Article 7(1) of Decision 93/731 and Article 2(2) of Decision 94/90, in order to obtain access to the documents
which had been denied him.
By letter of 5 July 1999 addressed to the applicant's legal adviser, the Commission refused the applicant's confirmatory
application. The Secretary-General stated, first of all, that the fourth document mentioned (Annex to the minutes of the meeting
of the EU-Russia Cooperation Committee, of 7 April 1998, Doc. Séance No 23/98 (Working Party on Eastern Europe and Central
Asia)) could not be identified. He then went on: Having examined your request for the other documents, I have to confirm that I cannot make these documents available to you,
as they are covered by the mandatory exception of the protection of the public interest, in particular international relations.
This exception is expressly foreseen in the Code of Conduct concerning public access to Commission and Council documents adopted
by the Commission on [8] February 1994. Each of the documents requested contains detailed information on the position the European Union intends to take in its relations
with Russia. Disclosure of these documents can thus undermine the position of the EU in current and future negotiations with
this third country and [they] therefore cannot be made available to you. These documents have been prepared by the Commission services for the use of the respective Council bodies. As the Council
has refused access to similar documents for the same reasons as stated above, the Commission is not in a position, for that
reason as well, to give you access to the documents.
The General Secretariat of the Council prepared a draft reply which was first considered by the
Working Party on Information of the Permanent Representative's Committee (Coreper) at its meeting on 23 June 1999. All the delegations approved the General
Secretariat's draft response, refusing to disclose the documents on the basis of Article 4(1) of Decision 93/731. The draft
reply then appeared as an
I-item on the agenda for the 30 June 1999 meeting of Coreper II, which consists of the permanent representative ambassadors of the
Member States to the European Union, and then as an
A-item on the Council's agenda; it was approved by the Council on 12 July 1999. The General Secretariat notified the applicant of
the negative response by letter of 14 July 1999. That letter reads as follows: The Council carefully considered the abovementioned documents and came to the following conclusions:
1.
DS 27/98: EU-USA background note on Ukraine, drafted by the services of the European Commission for examination by the Working
Party on Eastern Europe and Central Asia. The document describes in a very precise manner the EU position and priority objectives
for the negotiations to be conducted with the United States vis-à-vis Ukraine. Disclosure of this strategy could be harmful
to the EU interests in these negotiations as well as in other similar negotiations with third countries. Furthermore, disclosure of the comments and considerations as they are contained in the document could have a negative effect
on the EU relations with Ukraine. For these reasons, the Council, in agreement with the European Commission, decided that the document cannot be released by
virtue of Article 4(1) of ... Decision [93/731] (international relations).
2.
DS 40/98: annotated draft agenda for the first Cooperation Council EU-Ukraine (8/9 June 1998) put to the Working Party on
Eastern Europe and Central Asia by the services of the European Commission. The document contains extensive comments, including EU positions and objectives, on each of the items on the agenda. Disclosure
of these comments could be harmful to the EU's position in future Cooperation Council meetings as well as to its relations
with Ukraine in general. The Council therefore decided, in agreement with the European Commission, that the document cannot be released by virtue of
Article 4(1) of ... Decision [93/731] (international relations).
3.
COREU CFSP/SEC/0203/98: confidential report of the meeting between the Troika of the Eastern Europe/Central Asia Working Group
and the United States (Washington, 10 February 1998). The document contains extensive comments revealed by the US delegation at the Troika meeting, which took place in a confidential
framework. It also contains EU and US assessments of third countries' situations and policies, disclosure of which could jeopardise
the EU negotiating position with these countries. The Council therefore decided that the document cannot be made available by virtue of Article 4(1) of ... Decision [93/731]
(international relations).
4.
COREU CFSP/PRES/1239/98: COEST Caspian Energy: Draft EU/US statement. This confidential document was established in preparation
of the EU negotiating position with the United States on the subject of Caspian energy. Disclosure of the information contained
in the document could be harmful to the EU interests in these still ongoing negotiations as well as in other similar negotiations
to be conducted in the future. The Council therefore decided that the document cannot be made available by virtue of Article 4(1) of ... Decision [93/731]
(international relations).
5.
COREU CFSP/PRES/LON/1244/98: COEST: Russia/Latvia: meeting with Mr Primakov (8 May 1998). This document contains comments
revealed by Mr Primakov in the confidential framework of a bilateral meeting between Foreign Ministers. The document furthermore contains EU and Russian assessments of third countries' situations and policies, as well as of negotiations
taking place with the third countries in question. Disclosure of these assessments could jeopardise the EU and Russian relations
as well as the negotiating positions with these countries. The Council therefore decided that the document cannot be made available by virtue of Article 4(1) of ... Decision [93/731]
(international relations).
The contested judgment
On 23 September 1999 Mr Mattila brought an action before the Court of First Instance seeking principally the annulment of
the contested decisions.
By the contested judgment the Court of First Instance dismissed, first, as manifestly inadmissible, the sixth, seventh and
eighth pleas relating to breach of the
principle of independent review, misuse of powers and breach of the duty of cooperation and, second, as unfounded, the five other pleas relied on by Mr Mattila
alleging manifest error of assessment in interpreting the exception concerning the protection of international relations and
breach of the principle of proportionality, in that partial access to the documents in question had not been granted or even
considered (first and second pleas); breach of the principle that an application for access to documents must be considered
with regard to each individual document and failure in the duty to state reasons (third and fourth pleas); and failure to
take account of his private interest in having access to the documents (fifth plea). The Court of First Instance also dismissed
Mr Mattila's application for the production of documents.
In answer to the second plea, the Court of First Instance held inter alia:
It is clear from the judgment in
Hautala
v
Council
that the principle of proportionality permits the Council and the Commission, in particular cases where the volume of the
document or the passages to be removed would give rise to an unreasonable amount of administrative work, to balance the public's
interest in gaining access to those fragmentary parts against the burden of work so caused (paragraph 86 of the judgment).
The Council and the Commission could thus, in those particular cases, safeguard the interests of good administration.
Similarly, whilst, in accordance with
Hautala
v
Council
, the Council and the Commission are required to consider whether access ought to be granted to information not covered by
the exceptions, the principle of sound administration requires that the duty to grant partial access should not result in
an administrative burden which is disproportionate to the applicant's interest in obtaining that information. In light of
this, it is clear that the Council and the Commission are in any event entitled to refuse partial access in cases where examination
of the documents in question shows that partial access would be meaningless because the parts of the documents that could
be disclosed would be of no use to the applicant.
During the course of these proceedings, the Council and the Commission have asserted that partial access was not possible
in this case, because the parts of the documents to which access could have been granted contained so little information as
to be of no use to the applicant. At the hearing, the Council submitted that the documents in question cannot generally be
taken individually, and that their component parts are not easily removable.
The defendant institutions do not therefore dispute that they failed to consider the possibility of granting partial access
to the documents in question. Nevertheless, having taken account of the explanations they have proffered and in view of the
nature of the documents in question, it seems that, had they done so, they would not in any event have agreed to partial access.
Given the particular circumstances of the present case, the fact that the defendant institutions failed to consider the question
of granting partial access had no effect on the outcome of their examination (see, to that effect, Case T-75/95
Günzler Aluminium
v
Commission
[1996] ECR II-497, paragraph 55, and Case T-106/95
FFSA and Others
v
Commission
[1997] ECR II-229, paragraph 199).
In this connection, it is appropriate to stress the fact already mentioned that the documents at issue were prepared in the
context of negotiations and contain information on the European Union's position as regards its relations with Russia and
Ukraine and on negotiations to be held with the United States on the subject of Ukraine. The fact that the documents are sensitive
is corroborated by the applicant's statement at the hearing to the effect that the Supreme Court of Finland condemned him
for having communicated to Russia certain other documents whose content was almost identical to that of the documents to which
access was denied him by the defendant institutions.
Secondly, the Council's assertion that the documents in question cannot easily be taken separately and that their component
parts are not easily removable is uncontested. It must be observed in this connection that the applicant has no basis for
alleging that document COREU CFSP/PRES/1239/98 contains, inter alia, a draft of an EU/United States statement which, precisely
because of its public nature, ought to have been divulged. The fact that that document contains information which was the
subject of a public statement does not mean that the Council was under an obligation to divulge the draft of that statement
which, by definition, was purely a preparatory document intended for internal use only. As the Council emphasised during the
hearing, there are, generally speaking, differences between the draft of a statement and the final text that may point up
differences of opinion which must remain confidential. Furthermore, the public's right to be informed is adequately protected
by its right of access to the final version of the statement.
It follows that the defendant institutions did not infringe the principle of proportionality by failing to grant partial
access to the documents at issue.
The appeal
Mr Mattila states that he repeats in his appeal all the pleas raised before the Court of First Instance and that he had requested
the latter to:
─
annul the decisions of the Council and the Commission which the present application concerns;
annul the decisions of the Council and the Commission which the present application concerns;
─
invite the Council and the Commission to reconsider their position and give him access to the requested documents listed in
the application letters;
invite the Council and the Commission to reconsider their position and give him access to the requested documents listed in
the application letters;
─
give access, at least partial access, to such documents after cancelling or editing the sections which may justifiably qualify
as liable to prejudice the international relations of the European Community;
give access, at least partial access, to such documents after cancelling or editing the sections which may justifiably qualify
as liable to prejudice the international relations of the European Community;
─
order jointly the Council and the Commission to pay the costs.
order jointly the Council and the Commission to pay the costs.
The Council contends that the Court should:
─
dismiss the appeal as inadmissible in so far as the Court is asked to invite the Council and the Commission to reconsider
their position and give the appellant access to the requested documents listed in the application letters and to give access,
at least partial access, to such documents after cancelling or editing the sections which may justifiably qualify as liable
to prejudice the international relations of the European Community;
dismiss the appeal as inadmissible in so far as the Court is asked to invite the Council and the Commission to reconsider
their position and give the appellant access to the requested documents listed in the application letters and to give access,
at least partial access, to such documents after cancelling or editing the sections which may justifiably qualify as liable
to prejudice the international relations of the European Community;
─
dismiss the rest of the appeal as unfounded;
dismiss the rest of the appeal as unfounded;
─
order the appellant to pay the costs of these proceedings.
order the appellant to pay the costs of these proceedings.
The Commission contends that the Court should:
─
declare the appeal wholly inadmissible, and
declare the appeal wholly inadmissible, and
─
order the appellant to pay the costs of these proceedings,
order the appellant to pay the costs of these proceedings,
or in the alternative,
─
declare the appeal inadmissible in part in so far as the Court has been requested to issue directions to the institutions
and to re-examine the ruling on the admissibility of the pleas alleging breach of duty of independent review, misuse of power,
and failure to comply with the duty to cooperate, and
declare the appeal inadmissible in part in so far as the Court has been requested to issue directions to the institutions
and to re-examine the ruling on the admissibility of the pleas alleging breach of duty of independent review, misuse of power,
and failure to comply with the duty to cooperate, and
─
dismiss the remainder of the appeal, and
dismiss the remainder of the appeal, and
─
order the appellant to pay the costs of these proceedings.
order the appellant to pay the costs of these proceedings.
Admissibility of the appeal
Arguments of the parties
The Council asserts that the appeal is manifestly inadmissible in so far as Mr Mattila requests the Court to call on the Council
and the Commission to grant him at least partial access to the documents at issue (points 2 and 3 of the appellant's form
of order). Neither the Court of First Instance nor the Court of Justice is entitled, when exercising its power of judicial
review, to issue directions to the institutions or to assume the role assigned to them, including in relation to access to
documents.
The Council adds that it is for the Court to assess whether the appeal otherwise meets the requirements of the case-law, according
to which an appeal cannot be directed merely at re-examination of the application submitted to the Court of First Instance.
Mr Mattila essentially confines himself to repeating the arguments previously submitted to the Court of First Instance, which
were addressed in the contested judgment. The only new legal argument relied on by Mr Mattila, based on the Opinion of Advocate
General Léger in Case C-353/99 P
Council
v
Hautala
[2001] ECR I-9565, concerns the question of partial access to the documents.
The Commission considers that the appeal is manifestly inadmissible. In disregard of the requirements of the case-law, the
appeal essentially repeats the arguments already submitted to and addressed by the Court of First Instance, and thus consists
essentially of a request for re-examination of the original application. Contrary to Mr Mattila's arguments, the issue of
proportionality and partial access was fully argued by the parties and considered by the Court of First Instance on the basis
of its reasoning in Case T-14/98
Hautala
v
Council
[1999] ECR II-2489, which has been since confirmed by the Court of Justice in
Council
v
Hautala
.
Alternatively, the Commission submits, like the Council, that the second and third heads of claim are clearly inadmissible.
Findings of the Court
As regards the argument relating to the partial inadmissibility of the form of order, it is clear from paragraph 7 of the
present judgment that by his appeal Mr Mattila asks the Court, first, to annul the contested decisions, second, to invite
the Council and the Commission to reconsider their position and give him access to the requested documents as listed in his
letters of 8 March 1999, third, to grant him at least partial access to the documents after cancelling or editing the sections
which may justifiably qualify as liable to prejudice the international relations of the European Community and, fourth, to
order the Council and the Commission jointly to pay the costs.
As the Court of First Instance held in paragraph 26 of the contested judgment, the Community judicature is not entitled, when
exercising judicial review of legality on the basis of Article 230 EC, to issue directions (see in particular, in respect
of an appeal, Case C-5/93 P
DSM
v
Commission
[1999] ECR I-4695, paragraph 36).
In those circumstances, the appeal is inadmissible in so far as by its second and third pleas the Court is requested to invite
the Council and Commission to reconsider their position and grant the appellant access to the documents at issue, or to grant
him at least partial access to the documents after cancelling or editing the sections which may justifiably qualify as liable
to prejudice the international relations of the European Community.
As regards the argument of the inadmissibility of the various grounds of appeal, it will be dealt with during the consideration
of each of those grounds, which are based on, first, manifest error of assessment in interpreting the exception concerning
the protection of international relations; second, breach of the principle of proportionality, in that partial access to the
documents in question was not granted or even considered; third, breach of the principle that applications for access to documents
must be examined separately with regard to each document; fourth, breach of the obligation to state reasons, in so far as
the Court of First Instance held that the defendants had provided sufficient, though brief, reasons for rejecting the request
for access to documents; fifth, breach of the principles of objectivity and equality in assessing the appellant's interest
in having access to the documents; sixth, disregard of the obligation of independent review; seventh, misuse of powers and,
eighth, failure to comply with the duty of cooperation.
Second ground of appeal alleging breach of the principle of proportionality, in that partial access to the documents at issue
was not granted or even considered
Arguments of the parties
By the second ground of appeal, which should be considered first, Mr Mattila essentially complains that the Court of First
Instance misapplied Decisions 93/731 and 94/90.
By the first part of this ground of appeal Mr Mattila submits that, as is apparent from paragraph 71 of the contested judgment,
neither the Council nor the Commission considered the possibility of granting him partial access to the documents in question.
The Court of First Instance wrongly refused to annul the contested decisions on this ground, relying, in paragraph 71 of the
contested judgment, on the argument that taking account of the explanations proffered by the institutions during the course
of the proceedings, and in view of the nature of the documents in question, even if they had carried out such an assessment
they would not have been able to grant partial access.
Under the second part of this ground of appeal, Mr Mattila asserts that it is for the person requesting access to decide whether
the information in a document has any relevance for him and not for the Court of First Instance to decide this solely on the
basis of the assertions of the institution in whose possession the document is. The Court of First Instance therefore wrongly
accepted that a refusal to grant partial access can be based on, inter alia, the fact that the parts of the documents concerned
contain so little information as to be of no use to the appellant (paragraphs 69 to 71 of the contested judgment).
The Council observes that Advocate General Léger's Opinion in
Council
v
Hautala
is not directly applicable in the present case in so far as it concerned the general question of partial access to documents,
whereas in this case the Court of First Instance considered solely whether the fact that in this case the institutions concerned
did not consider the possibility of partial access had an effect on the decision to refuse access altogether. In the light
of the information before the Court of First Instance on the content of the documents at issue, it cannot be criticised on
this point. The Council points out, in that regard, that the Court of First Instance was not in a position to order the production
of the contested documents and had to rely on the description of the structure and content of the documents provided by the
parties, since the amendment to Article 67 of the Rules of Procedure of the Court of First Instance (OJ 2000 L 322, p. 4)
on that issue only entered into force on 1 February 2001, while the hearing before the Court took place on 21 November 2000.
The contested judgment does not call in question the judgment in
Council
v
Hautala
, according to which the Council is bound to consider partial access. In accordance with the case-law, the Court of First
Instance merely considered whether the error of law that it found had an effect on the outcome of the examination carried
out by the institution concerned. The Court of First Instance therefore rightly held that there was no such effect and that
the contested decision should accordingly be upheld.
Moreover, the Council points out that while, as a general rule, it is for an applicant to assess whether the passages communicated
are of use to him, there may be objective factors which show that partial communication of a document clearly could not provide
him with any information that he does not already possess. Such is the position in the present case, and indeed Mr Mattila
admitted it to a certain extent. It would be absurd and contrary to the principles of sound administration and proportionality
to disclose edited versions of the documents consisting almost entirely of blank pages.
According to the Commission, the Court of First Instance clearly considered and applied the principle of proportionality to
the particular circumstances of this case. It specifically accepted Mr Mattila's argument that the institutions ought to have
considered whether to grant him at least partial access to the documents at issue (paragraph 66 of the contested judgment).
It dismissed the Council's argument that
Hautala
v
Council
should not be taken into consideration and it confirmed and applied the analysis in  that case both as regards the principle
of proportionality and as regards the safeguarding of the interests of good administration.
Findings of the Court
Admissibility of the second ground of appeal
According to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court
of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely
the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically
advanced in support of the appeal (see, in particular, Case C-41/00 P
Interporc
v
Commission
[2003] ECR I-2125, paragraph 15).
Where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of
First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state
reasons under those provisions (see, inter alia,
Interporc
v
Commission
, cited above, paragraph 16).
However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance,
the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could
not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would
be deprived of part of its purpose (see, inter alia,
Interporc
v
Commission
, paragraph 17).
As it is clear from paragraphs 18 to 20 of the present judgment, the second ground of appeal satisfies the requirement to
state reasons set out above.
Merits of the second ground of appeal
As regards the first part of the second ground of appeal, the Court of First Instance held, in paragraph 71 of the contested
judgment, that the Council and the Commission had not considered the possibility of granting partial access to the documents
at issue.
It is clear from the case-law of the Court that those institutions are obliged, under Decisions 93/731 and 94/90 respectively,
and in accordance with the principle of proportionality, to examine whether partial access should be granted to the information
not covered by the exceptions, in the absence of which a decision refusing access to a document must be annulled as being
vitiated by an error of law (in connection with Decision 93/731, see
Council
v
Hautala
, paragraphs 21 to 31).
The Court of First Instance wrongly held, in paragraph 71 of the contested judgment, that such an error of law does not result
in the annulment of the contested decisions, on the ground that in the light of the explanations proffered by the Council
and the Commission in the course of proceedings before the Court, and in view of the nature of the documents at issue, that
error had no effect on the outcome of their examination.
As the Advocate General explained in paragraphs 59 and 62 of his Opinion, permitting the Council and the Commission to communicate
to the appellant the reasons for the refusal to grant partial access to a document for the first time before the Community
courts would render redundant the procedural guarantees expressly laid down in Decisions 93/731 and 94/90 and seriously affect
the appellant's rights which require that, except in exceptional cases, any decisions adversely affecting a person must state
the reasons on which it is based, in order to provide the person concerned with details sufficient to allow him to ascertain
whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested (see,
in particular, Case 195/80
Michel
v
Parliament
[1981] ECR 2861, paragraph 22).
On that ground alone, Mr Mattila's submission that the contested judgment is vitiated by an error of law is well founded.
Accordingly, the contested judgment must be annulled in so far as it dismisses Mr Mattila's form of order seeking annulment
of the contested decisions, without it being necessary to consider the second part of the second ground of appeal and the
other grounds put forward by Mr Mattila in support of his appeal.
Consequences of the annulment of the contested judgment
Under the first paragraph of Article 61 of the Statute of the Court of Justice, if an appeal is well founded, the Court of
Justice must set aside the decision of the Court of First Instance. It may then itself give final judgment in the matter,
where the state of the proceedings so permits, or refer the case back to the Court of First Instance.
In the present case, since the state of the proceedings is such as to permit final judgment to be given in the matter, it
is appropriate for the Court to give final judgment on the dispute.
As it is clear from paragraphs 30 to 32 above, the contested decisions are vitiated by an error of law in that they were adopted
without consideration by the Council or the Commission of the possibility of partial access to the documents concerned.
In those circumstances the decisions of the Commission and the Council of 5 and 12 July 1999 respectively, refusing the applicant
access to certain documents, must be annulled.
Costs
Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself
gives final judgment in the case, the Court is to make a decision as to costs. Under Article 69(2) of the Rules of Procedure,
applicable to appeals by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs, if they have been
applied for in the successful party's pleadings. Since the Council and the Commission have been unsuccessful, they must be
ordered to pay the costs, in accordance with the form of order sought by the appellant.
On those grounds,
THE COURT (Sixth Chamber),
hereby:
1.
Sets aside the judgment of the Court of First Instance of the European Communities of 12 July 2001 in Case T-204/99
Mattila
v
Council and Commission
in so far as it rejects Mr Mattila's form of order seeking annulment of the decisions of the Commission of the European Communities
and the Council of the European Union of 5 and 12 July 1999 respectively refusing the appellant access to certain documents;
2.
Annuls those decisions;
3.
Dismisses the remainder of the appeal;
4.
Orders the Council and the Commission to pay the costs relating to both sets of proceedings.
Gulmann
Cunha Rodrigues
Puissochet
Schintgen
Macken
Delivered in open court in Luxembourg on 22 January 2004.
R. Grass
V. Skouris
Registrar
President
–
Language of the case: English.