Judgment — ECLI:EU:T:2011:236
Date: 2011-05-24
Language of the case: English
Court formation: Second Chamber
Subject matter: Right of establishment;Provisions governing the Institutions;Freedom to provide services;Access to documents
Procedure: Action for annulment - unfounded;Action for annulment - successful;Action for annulment - inadmissible
Origin: Belgium

summary of the complaint and its purpose is to seek the opinion of the United Kingdom authorities about Infront WM’s allegations. The only reference to information provided by the United Kingdom authorities concerns the audience figures, which were nevertheless criticised in the complaint and therefore already in Mr Batchelor’s possession as legal counsel for Infront WM (see paragraphs 5 and 6 above). It follows that the reason relied on by the Commission in the express decision in order to justify non-disclosure of the document in question is not compatible with the content of that letter. 91 In any event, even leaving that fact aside, it should be observed that the facts relied on by the Commission in the express decision are not sufficient to satisfy the conditions laid down in the third indent of Article 4(2) of Regulation No 1049/2001. 92 In that connection, it should be observed that, as the Commission states (see paragraph 87 above), the investigation in respect of which the relevant exception is invoked is the procedure for the assessment of the compatibility with Community law of the measures adopted by the United Kingdom in the context of Article 3a of Directive 89/552. 93 However, the purpose of the Commission’s involvement in that procedure is to verify whether the mechanism provided for under Article 3a(3) of that directive – involving obligations for the other Member States and constituting an impediment to the freedom to provide services – may, in the present case, be triggered. Furthermore, if, after the complaint was lodged, the Commission requested clarification and further information from the United Kingdom authorities, it was clearly because they were necessary for the purposes of its assessment. 94 In those circumstances, it must be found that, if a Member State does not wish to forward to the Commission the documents necessary for the purposes of that assessment, on the ground that it objects to their possible disclosure by the Commission to third parties pursuant to Regulation No 1049/2001, the only consequence will be that the Commission will not carry out, in the context of Article 3a of Directive 89/552, the assessment of the compatibility with Community law of the measures adopted by the Member State and primary law will apply in full. It should be added in that regard that, under Article 3a of Directive 89/552, the role of the Commission is not to implement a European Union policy on public access to events of major importance for society, but simply to provide a mechanism to prevent the circumvention of any relevant national measures where they are in conformity with Community law. Furthermore, as the use of the word ‘may’ in Article 3a(1) of Directive 89/552 makes clear, Member States are free to decide whether they wish to implement a policy on events of major importance for their society. 95 Accordingly, the purpose of the Commission’s investigation is not to grant access, through free television, to events of major importance for society, but to ensure that Community law is complied with where a Member State wishes to avail itself of the mutual recognition mechanism in relation to measures which it adopts as part of a policy in that field. However, the objective of compliance with Community law is not jeopardised if a Member State does not wish to cooperate in the assessment as to whether the measures which it adopts or intends to adopt are compatible with Community law: in such circumstances, those measures will not be examined by the Commission, but nor will they benefit from mutual recognition, and the freedom to provide services guaranteed by primary law will apply in full. 96 It follows that, by relying on the third indent of Article 4(2) of Regulation No 1049/2001 in order to refuse disclosure to Mr Batchelor of the letter of 2 August 2006, the Commission erred in law. 97 Accordingly, the express decision must be annulled, except in so far as it concerns the information contained in the first two annexes to the letter of 19 February 2007, in respect of which the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001 has been invoked. Costs 98 Under Article 87(2) of the Rules of Procedure, 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 Commission has been essentially unsuccessful, it must be ordered to pay the costs, since the applicant applied for costs, with the exception of the costs it incurred as a result of the intervention of the United Kingdom. In that connection, the United Kingdom must be ordered to pay the costs incurred by the applicant on account of its intervention in accordance with the applicant’s pleadings. 99 The United Kingdom and the Kingdom of Denmark should bear their own costs, pursuant to Article 87(4) of the Rules of Procedure. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Dismisses as inadmissible the action against the implied decision of refusal deemed to have been adopted on 9 April 2008; 2. Annuls the decision of the Secretary General of the European Commission of 16 May 2008, except in so far as it concerns the information contained in the first two annexes to the letter of 19 February 2007, in respect of which the exception provided for in the first indent of Article 4(2) of 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 has been invoked; 3. Orders the Commission to bear its own costs and to pay those incurred by Mr Edward William Batchelor; 4. Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs and to pay the costs incurred by Mr Batchelor as a result of its intervention; 5. Orders the Kingdom of Denmark to bear its own costs. Forwood Dehousse Schwarcz Delivered in open court in Luxembourg on 24 May 2011. [Signatures] * Language of the case: English.