# C_2014071EN.01000501.xml

| 8.3.2014 | EN | Official Journal of the European Union | C 71/5 |
| --- | --- | --- | --- |

8.3.2014

EN

Official Journal of the European Union

C 71/5

---

Appeal brought on 26 November 2013 by ClientEarth against the judgment of the General Court (Sixth Chamber) delivered on 13 September 2013 in Case T-111/11: ClientEarth v Commission

(Case C-612/13 P)

(2014/C 71/08)

Language of the case: English

Parties

Appellant: ClientEarth (represented by: P. Kirch, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | set aside the General Court judgment of 13 September 2013 in case T-111/11; |
| --- | --- |

—

set aside the General Court judgment of 13 September 2013 in case T-111/11;

| — | order the Commission to pay all costs. |
| --- | --- |

—

order the Commission to pay all costs.

Pleas in law and main arguments

In support of the appeal, the Appellant relies on three grounds of appeal:

| 1. | First ground of appeal, alleging that the General Court erred in law, through the application of an erroneous interpretation of the terms ‘investigation’ and ‘undermine the protection of (...) the purpose of (...) investigations’ as set out in the third indent of Article 4(2) of Regulation No. 1049/2001 (1).
  The General Court erred in law when it stated, categorically, that ‘the studies at issue are part of an investigation conducted by the Commission, within the meaning of the third indent of Article 4(2) of Regulation No. 1049/2001’.
  As a first branch of this ground of appeal, the General Court misinterpreted the term ‘investigation’.
  Second branch: even considering that an investigation took place, the General Court erred in law by misinterpreting the term ‘undermine’. The General Court linked the concept of disclosure with the concept of undermining, without providing a concrete demonstration of how exactly disclosure would have undermined the ‘purpose’ of investigations. |
| --- | --- |

1.

First ground of appeal, alleging that the General Court erred in law, through the application of an erroneous interpretation of the terms ‘investigation’ and ‘undermine the protection of (...) the purpose of (...) investigations’ as set out in the third indent of Article 4(2) of Regulation No. 1049/2001 (1).

The General Court erred in law when it stated, categorically, that ‘the studies at issue are part of an investigation conducted by the Commission, within the meaning of the third indent of Article 4(2) of Regulation No. 1049/2001’.

As a first branch of this ground of appeal, the General Court misinterpreted the term ‘investigation’.

Second branch: even considering that an investigation took place, the General Court erred in law by misinterpreting the term ‘undermine’. The General Court linked the concept of disclosure with the concept of undermining, without providing a concrete demonstration of how exactly disclosure would have undermined the ‘purpose’ of investigations.

| 2. | Second ground of appeal, alleging that the General Court erred in law through a violation of Articles 4(1), 4(2) and 4(4) of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental matters, done at Aarhus, Denmark, on 25 June 1998 and approved by Council Decision 2005/370/EC of 17 February 2005 (2).
  This ground of appeal consists of five arguments. First, the General Court erred in a restrictive way in its application of the obligation to interpret Article 4(4)(c) of the Aarhus Convention. Secondly, the General Court erred in its application of the measure in question in light of the Aarhus Convention. Third, the General Court erred in its obligation to interpret the Aarhus Convention in accordance with customary international law. Fourth, the General Court erred in its refusal of direct applicability of Articles 4 and 4(4)(c) of the Aarhus Convention. Finally, the General court erred in its application of the law in its acceptance of a derogation from the application of the Aarhus Convention based on the ‘specific features’ of the European Union. |
| --- | --- |

2.

Second ground of appeal, alleging that the General Court erred in law through a violation of Articles 4(1), 4(2) and 4(4) of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental matters, done at Aarhus, Denmark, on 25 June 1998 and approved by Council Decision 2005/370/EC of 17 February 2005 (2).

This ground of appeal consists of five arguments. First, the General Court erred in a restrictive way in its application of the obligation to interpret Article 4(4)(c) of the Aarhus Convention. Secondly, the General Court erred in its application of the measure in question in light of the Aarhus Convention. Third, the General Court erred in its obligation to interpret the Aarhus Convention in accordance with customary international law. Fourth, the General Court erred in its refusal of direct applicability of Articles 4 and 4(4)(c) of the Aarhus Convention. Finally, the General court erred in its application of the law in its acceptance of a derogation from the application of the Aarhus Convention based on the ‘specific features’ of the European Union.

| 3. | Third ground of appeal in law, alleging the violation by the General Court of Articles 6(1) of Regulation No. 1367/2006 (3) and 4(2) in fine and 4(3) of Regulation No. 1049/2001.
  The General Court erred in law by grounding its refusal to acknowledge the existence of overriding public interests in disclosure only on the analysis of the arguments put forward by the applicant. This approach is contrary to the provisions of Regulation No. 1049/2001 as well as to relevant case law. In fact, the arguments put forward by an applicant in this respect cannot per se be the reason why the existence of overriding public interests is denied, because the law does not set the burden of proof of overriding circumstances on the applicant. The balance of the interests at stake in disclosure must be carried out by the institution concerned. |
| --- | --- |

3.

Third ground of appeal in law, alleging the violation by the General Court of Articles 6(1) of Regulation No. 1367/2006 (3) and 4(2) in fine and 4(3) of Regulation No. 1049/2001.

The General Court erred in law by grounding its refusal to acknowledge the existence of overriding public interests in disclosure only on the analysis of the arguments put forward by the applicant. This approach is contrary to the provisions of Regulation No. 1049/2001 as well as to relevant case law. In fact, the arguments put forward by an applicant in this respect cannot per se be the reason why the existence of overriding public interests is denied, because the law does not set the burden of proof of overriding circumstances on the applicant. The balance of the interests at stake in disclosure must be carried out by the institution concerned.

---

(1)  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 L 145, p. 43

(2)  2005/370/EC: Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters.

OJ L 124, p. 1

(3)  Regulation (EC) No. 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies.

OJ L 264, p. 13

---