Judgment — ECLI:EU:T:2015:124
Date: 2015-02-27
Language of the case: German
Court formation: Second Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - decision unnecessary;Action for annulment - successful
Origin: Germany

summary form, as their content has possibly been debated at a hearing and, in some circumstances, also reproduced in the final judgment (see, to this effect, API v Commission, paragraph 41 above, EU:T:2007:258, paragraph 106). Furthermore, the content of a Member State’s written submissions may be reflected in the written submissions drawn up by an EU institution for the same proceedings, whether in summary form or through arguments raised in response by the institution. Therefore, any disclosure by that institution of its own written submissions may grant a degree of access to the content of the written submissions of the Member State concerned. 97 In addition, in this case, with regard to written submissions drawn up by a Member State, it should be observed that Article 4(5) of Regulation No 1049/2001 provides that a Member State may request an institution not to disclose a document originating from that State without its prior agreement. According to case-law, Article 4(5) of Regulation No 1049/2001 thus gives the Member State the opportunity to participate in the taking of the decision which the institution is required to adopt, and to that end establishes a decision-making process for determining whether the substantive exceptions listed in Article 4(1), (2) and (3) preclude access being given to the document concerned (Germany v Commission, paragraph 40 above, ECR, EU:T:2012:75, paragraph 31; see also, to this effect, Sweden v Commission, paragraph 39 above, EU:C:2007:802, paragraphs 76, 81, 83 and 93). Whilst it is true that that provision does not confer on the Member State concerned a general and unconditional right of veto, so that it could in a discretionary manner oppose the disclosure of documents originating from it and held by an institution (Sweden v Commission, paragraph 39 above, EU:C:2007:802, paragraph 75), it does nevertheless permit it to participate in the decision to grant access to the document at issue, including written submissions drawn up for court proceedings. 98 In the second place, the Commission claims that both the fourth subparagraph of Article 15(3) TFEU and the specific rules relating to access to judicial documents would be rendered meaningless and circumvented if access were allowed to written submissions drawn up by a Member State for court proceedings. It would then be possible systematically to apply to the Commission for access to copies of all documents sent to it in any court proceedings even though the Court could not grant access to them. Furthermore, aside from the circumvention of the specific rules, the very existence of a right of access to the other parties’ written submissions would, in each case, depend on whether or not the Commission was participating in the court proceedings, which would be contrary to the system underlying those provisions. 99 First of all, the Commission’s argument alleging a circumvention of the specific rules relating to access to documents concerning court proceedings must be rejected. 100 It should be observed in this regard that it is true that, in respect of the Commission’s written submissions, it has been ruled that, while the court proceedings were pending, the disclosure of those written submissions would flout the special nature of that category of documents and would be tantamount to making a significant part of the court proceedings subject to the principle of transparency and, as a consequence, the effectiveness of the exclusion of the Court of Justice from the institutions to which the principle of transparency applies, in accordance with the fourth subparagraph of Article 15(3) TFEU, would be largely frustrated (see, to this effect, Sweden and Others v API and Commission, paragraph 15 above, EU:C:2010:541, paragraph 95). It has also been ruled that neither the Statute of the Court of Justice nor the Rules of Procedure of the European Union Courts provide for any third-party right of access to pleadings submitted to the Courts in court proceedings (Sweden and Others v API and Commission, paragraph 15 above, EU:C:2010:541, paragraph 99). 101 However, according to that same case-law, the considerations mentioned in paragraph 100 above are not such as to render the provisions of Regulation No 1049/2001 inapplicable to an application for access to written submissions relating to court proceedings. 102 The considerations mentioned in paragraph 100 above were taken into account for the purposes of interpreting the exception relating to the protection of court proceedings laid down in the second indent of Article 4(2) of Regulation No 1049/2001 (see, to this effect, Sweden and Others v API and Commission, paragraph 15 above, EU:C:2010:541, paragraphs 94, 95, 99, 100 and 102), which necessarily implies that they certainly do not preclude the application of that regulation. Contrary to the claim made by the Commission, it must be held, having regard to paragraphs 72, 73 and 81 above, that those same considerations apply in the context of an application for access to a Member State’s written submissions. 103 It should also be recalled that even though Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions, that right is nevertheless subject, in the light of the regime of exceptions provided for in Article 4 of that regulation, to certain limits based on reasons of public or private interest (Commission v Éditions Odile Jacob, C‑404/10 P, ECR, EU:C:2012:393, paragraph 111, and Commission v Agrofert Holding, C‑477/10 P, ECR, EU:C:2012:394, paragraph 53). In addition, it follows both from the fourth subparagraph of Article 15(3) TFEU and from Regulation No 1049/2001 that the limitations placed on the application of the principle of transparency in relation to judicial activities pursue the same objective: that is to say, they seek to ensure that exercise of the right of access to the documents of the institutions does not undermine the protection of court proceedings (see, to this effect, Sweden and Others v API and Commission, paragraph 15 above, EU:C:2010:541, paragraph 84). 104 Thus, contrary to the claim made by the Commission, the protection of court proceedings can, if necessary, be ensured by the application of the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001, it being understood that, according to case-law, account can be taken of the absence, in the specific rules relating to the European Union Courts, of a right of third-party access to written submissions made to those Courts in court proceedings for the purposes of interpreting the exception relating to the protection of court proceedings (see, to this effect, Sweden and Others v API and Commission, paragraph 15 above, EU:C:2010:541, paragraph 100). 105 Consequently, including the written submissions at issue within the scope of Regulation No 1049/2001 does not undermine the objective of the specific rules relating to access to documents concerning the court proceedings. 106 That conclusion is confirmed, moreover, by the fact that the Court has ruled, pursuant to the application of the Code of conduct concerning public access to Council and Commission documents (OJ 1993 L 340, p. 41), that it is not possible to infer from the right of every person to a fair hearing by an independent tribunal that the court hearing a dispute is necessarily the only body empowered to grant access to the documents in the proceedings in question, especially since the risks that the independence of the court might be undermined are sufficiently taken into account by that code and by the protection afforded by the courts at Union level with respect to measures of the Commission granting access to documents which it holds (Netherlands and van der Wal v Commission, C‑174/98 P and C‑189/98 P, ECR, EU:C:2000:1, paragraphs 17 and 19). It cannot therefore be accepted, in the absence of specific provisions laid down to that effect, that the scope of application of Regulation No 1049/2001 may be restricted on the ground that the provisions of the Statute of the Court and of the Rules of Procedure of the European Union Courts do not govern access of third parties to documents (API v Commission, paragraph 41 above, EU:T:2007:258, paragraph 89; see also, to this effect and by analogy, Interporc v Commission, T‑92/98, ECR, EU:T:1999:308, paragraphs 37, 44 and 46). 107 Second, in so far as the Commission argues that such inclusion would effectively permit applications for access to all documents transmitted to the Commission by the European Union Courts, including, in addition to all the written submissions of all the parties, minutes of hearings, it should be pointed out that the conclusion, in paragraph 83 above, that a Member State’s written submissions which are sent to an institution in court proceedings are not inherently excluded from the scope of Regulation No 1049/2001 in no way prejudges the different question whether documents drawn up by the Court itself and sent to an institution in court proceedings are also covered by the scope of that regulation. Since the subject-matter of the present dispute is limited, having regard to the single plea in law raised by the applicant, to assessing the lawfulness of the Commission’s refusal to grant him access to the written submissions at issue, there is no need for the Court to take a view in the present case on whether Regulation No 1049/2001 is also applicable to other documents sent to an institution in court proceedings, such as minutes of hearings. According to case-law, the Courts of the European Union may not rule ultra petita (Meroni v High Authority, 46/59 and 47/59, ECR, EU:C:1962:44, p. 801, and Jamet v Commission, 37/71, ECR, EU:C:1972:57, paragraph 12). 108 In addition, with regard to the Commission’s argument that including the written submissions of other parties to court proceedings within the scope of Regulation No 1049/2001 would effectively open up access to all the documents of all the parties to the proceedings and make the very existence of such a right of access contingent on its participation in the court proceedings in question, it should be observed that, according to the case-law cited in paragraph 106 above, in the absence of specific provisions laid down to that effect, the scope of application of Regulation No 1049/2001 cannot be restricted on the ground that the provisions of the Statute of the Court of Justice and of the Rules of Procedure of the European Union Courts do not govern the right access of third parties to documents. In those circumstances and, having regard to the statements made in paragraph 107 above, without prejudice to the question, which is different from that raised in the present case, of the inclusion within the scope of the right of access to documents of any written submission drawn up by any party in any court proceedings, the fact that possible access to such written submissions where an application is made to an institution is dependent on that institution’s participation in the court proceedings in question cannot be considered capable of restricting the scope of Regulation No 1049/2001. Such dependence would only be the consequence of the absence of specific provisions governing access of third parties to written submissions drawn up for proceedings before the European Union Courts. 109 Lastly, in so far as the Commission seeks to claim that applications for access to a Member State’s written submissions should be made to the Court or to the Member State which is the author of those written submissions, it should be noted, with regard to any obligation to make an application for access to the written submissions at issue to the Court, that, according to the case-law cited in paragraph 106 above, it is not possible to infer from the right of every person to a fair hearing by an independent tribunal that the court hearing a dispute is necessarily the only body empowered to grant access to the documents in the proceedings in question. In accordance with the provisions of Regulation No 1049/2001, an application for access to documents may be made to the Commission for documents held by it provided the conditions governing the application of that regulation are met. 110 It should also be noted, with regard to any obligation to submit an application to the Member State which is the author of the written submissions at issue, that in adopting Regulation No 1049/2001 the EU legislature abolished the authorship rule, under which, where the author of a document held by an institution was a third party, the request for access to the document had to be made directly to the author of the document (Sweden v Commission, paragraph 39 above, EU:C:2007:802, paragraph 56, and Germany v Commission, paragraph 40 above, EU:T:2012:75, paragraph 28), which is, moreover, not contested by the Commission. 111 Furthermore, contrary to the statement made by the Commission at the hearing, such an obligation to submit an application for access to the Member State which is the author of the written submissions at issue also cannot stem from the fourth subparagraph of Article 15(3) TFEU, which, as can be seen from the considerations set out in paragraph 81 above, cannot be interpreted as having reintroduced the authorship rule in respect of access to written submissions drawn up for court proceedings. Aside from the fact that that provision does not contain an explicit rule to that effect, it is clear from the considerations set out in paragraph 81 above that neither that provision nor the nature of the written submissions at issue requires a distinction to be made, for the purposes of their inclusion within the scope of the right of access to documents, between written submissions originating from the Commission and those originating from a Member State. 112 In the light of the above considerations, it should be held that, contrary to the statement made by the Commission and without there being any need to examine the other arguments raised by the applicant in this regard, the written submissions at issue do not constitute documents of the Court of Justice which, having regard to the provisions of the fourth subparagraph of Article 15(3) TFEU, would be excluded from the scope of the right of access to documents and thus from the scope of Regulation No 1049/2001. 113 Having regard to all the foregoing considerations, and in particular the findings made in paragraphs 48 and 83 above, it must be concluded that by considering, in the decision of 3 April 2012, that the written submissions at issue did not fall within the scope of Regulation No 1049/2001, the Commission infringed Article 2(3) of that regulation. 114 Consequently, the single plea in law and thus the application for annulment of the decision of 3 April 2012, in so far as it refused the applicant access to the written submissions at issue, should be granted. Costs 115 First, in respect of the costs incurred by the applicant and by the Commission, Article 87(2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 87(3) of the Rules of Procedure, where the circumstances are exceptional, the General Court may order that the costs be shared or that each party bear its own costs. In addition, under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the General Court. 116 In the present case, as the Court has held above, although the action is now devoid of purpose in so far as it seeks the annulment of the decision of 16 March 2012, it has been granted in so far as it seeks the partial annulment of the decision of 3 April 2012. 117 Nevertheless, at the hearing the Commission claimed that, in the case of the partial annulment of the decision of 3 April 2012, the applicant should be ordered to bear his own costs by reason of exceptional circumstances. The reason for that claim was the publication on the applicant’s website of the defence, the reply, the Kingdom of Sweden’s statement in intervention and an exchange of letters between the Commission and the applicant on the subject of the publication of those documents. According to the Commission, by publishing those documents relating to ongoing court proceedings, the applicant breached the principles of equality of arms and the due administration of justice. 118 It should be observed in this regard that under the rules which govern procedure in cases before the General Court, parties are entitled to protection against the misuse of pleadings and evidence (Svenska Journalistförbundet v Council, T‑174/95, ECR, EU:T:1998:127, paragraph 135). Thus, in accordance with the third subparagraph of Article 5(3) of the Instructions to the Registrar of the General Court, no third party, private or public, may have access to the case-file or to the procedural documents without the express authorisation of the President of the General Court or, where the case is still pending, of the President of the formation of the Court that is hearing the case, after the parties have been heard, it being understood that that authorisation may be granted only upon written request accompanied by a detailed explanation of the third party’s legitimate interest in inspecting the file. 119 That provision reflects a general principle in the due administration of justice according to which parties have the right to defend their interests free from all external influences and particularly from influences on the part of members of the public (Svenska Journalistförbundet v Council, paragraph 118 above, EU:T:1998:127, paragraph 136). It follows that a party who is granted access to the procedural documents of other parties is entitled to use those documents only for the purpose of pursuing his own case and for no other purpose, including that of inciting criticism on the part of the public in relation to arguments raised by other parties in the case (Svenska Journalistförbundet v Council, paragraph 118 above, EU:T:1998:127, paragraph 137). 120 According to case-law, an action contrary to that principle involves an abuse of rights which may be taken into account in awarding costs in respect of exceptional circumstances in accordance with Article 87(3) of the Rules of Procedure (see, to this effect, Svenska Journalistförbundet v Council, paragraph 118 above, EU:T:1998:127, paragraphs 139 and 140). 121 In this case, it is common ground that the applicant published both certain written pleadings relating to the present case, in particular, in addition to his reply, the Commission’s defence and an exchange of letters between the parties on the subject of the publication of those documents, namely a letter from the Commission requesting him to remove the two abovementioned written submissions from his website and his reply to that letter. In addition, the Commission claims that the applicant also published the Kingdom of Sweden’s statement in intervention, which has not been contested by the applicant. 122 It is also common ground that the applicant made a number of comments in conjunction with the publication of those documents. Thus, the publication of the defence and the reply was accompanied by a brief post stating that the Commission was still refusing to grant the applicant access to the written submissions at issue. It is stated that in the applicant’s reply that he had ‘dissected’ the Commission’s arguments in this regard. The publication of the exchange of letters mentioned in paragraph 121 above formed part of a post by the applicant, entitled ‘The Commission wants to ban the publication on the internet of written submissions concerning the retention of data’. That post, which takes a relatively critical tone, states that the Commission’s refusal to grant the applicant access to the written submissions at issue is in ‘flagrant contradiction’ with the case-law of the Court of Justice and that the Commission was opposed to the publication of ‘its vain attempts to maintain secrecy’. The two posts offer internet users the possibility to make comments, which gave rise, in connection with the publication of the second post mentioned above, to a number of comments which were very critical of the Commission. 123 The publication by the applicant, on the internet, of the Commission’s defence and the exchange of letters concerning the publication of those documents constitutes misuse, within the meaning of the case-law cited in paragraph 118 above, of the pleadings sent to the applicant in the context of the present proceedings. 124 By publishing those documents, the applicant availed himself of his right of access to the Commission’s written pleadings relating to the present proceedings for purposes other than solely defending his own case in those proceedings and thus impaired the Commission’s right to defend its position without any outside influence. This consideration must be made a fortiori since, as is clear from paragraph 122 above, the publication of the documents offered internet users the possibility to make comments and gave rise to a number of comments which were critical of the Commission. 125 In addition, after the Commission sent the letter requesting the removal of the written submissions from the applicant’s website, the applicant kept those documents on his website. 126 Therefore, having regard to the case-law cited in paragraph 120 above, it must be concluded that the publication of the Commission’s written pleadings on the internet, which is a contrary to the principles set out in paragraphs 118 and 119 above, involves an abuse of rights which may be taken into account in awarding costs in respect of exceptional circumstances in accordance with Article 87(3) of the Rules of Procedure. 127 In the light of the above considerations, the circumstances of the case will be fairly assessed by ruling that the Commission should, in addition to its own costs, bear half the costs incurred by the applicant. 128 Second, in respect of the costs incurred by the interveners, under the first subparagraph of Article 87(4) of the Rules of Procedure, the Member States which intervened in the proceedings must bear their own costs. Accordingly, the Republic of Finland and the Kingdom of Sweden must bear their own costs. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Annuls the Commission decision of 3 April 2012 refusing to grant Patrick Breyer full access to documents relating to the transposition by the Republic of Austria of Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC and to documents relating to Case C‑189/09 Commission v Austria, in so far as it refuses access to the written submissions lodged by the Republic of Austria in that case; 2. Declares that there is no need to adjudicate on the application for annulment of the Commission decision of 16 March 2012 rejecting an application made by Mr Breyer for access to its legal opinion relating to Directive 2006/24; 3. Orders the Commission, in addition to its own costs, to bear half the costs incurred by Mr Breyer; 4. Orders the Republic of Finland and the Kingdom of Sweden to bear their own costs. Martins Ribeiro Gervasoni Madise Delivered in open court in Luxembourg on 27 February 2015. [Signatures] * Language of the case: German.