Judgment — ECLI:EU:T:2007:114
Date: 2007-04-25
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Provisions governing the Institutions;Commercial policy;World Trade Organization;Access to documents
Concepts: Statement of reasons;General;Obligation to state reasons;Prior balancing of the interests at stake;Meaning of 'document';Partial access;Protection of the public interest
Procedure: Action for annulment - unfounded
Origin: Belgium

summary report or other subsequent document of the Committee. 63 That being so, it is also not possible to conclude that the Council acted in an arbitrary or unpredictable manner by failing to produce minutes on that item at the meeting. It cannot therefore be concluded that the Council, in claiming that such minutes do not exist, infringed the applicant’s right of access to documents conferred by Regulation No 1049/2001. 64 Accordingly, the first part of the third plea must be rejected. The second part, alleging that the Council refused, in the absence of any minutes, to provide the applicant with information on the content of the discussions on the first item on the agenda of the meeting on 19 December 2003 – Arguments of the parties 65 The applicant states that even if, according to the Council, there were no minutes of the meeting of 19 December 2003, in the sense intended by the Commission in its letter of 1 June 2004, the Council should have granted it access to information on the content of the discussions held at that meeting. 66 First, the applicant submits that information on the content of the discussions at the meeting should have been recorded in a form capable of being disseminated in order to give substance to the right of access to documents, which should be interpreted as a right to information in the light of the principle of transparency and the judgment in Council v Hautala, cited in paragraph 50 above, in which the Court expressly rejected the Council’s argument that that right concerned only access to documents and not access to the information contained in them. 67 The right of access to documents, construed as a right of access to information, is particularly relevant in the field of protection of the environment under the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, which was signed by the Community. The proposal for a regulation on its application to the Community institutions, which, as was stated at the hearing, subsequently became 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 2006 L 264, p. 13), refers to Regulation No 1049/2001 with regard to access to information on the environment, which is defined as ‘any information in written, visual, aural, electronic or any other material form’. It is therefore clear that Regulation No 1049/2001 applies to information generally and not simply to documents. 68 Secondly, the applicant submits that, in order to give full effect to the right of access to information guaranteed by Community law, the information to which a person has right of access must be provided in a suitable form and, even if the document in which the information is recorded cannot be provided, it must be drawn up, extracted, summarised or paraphrased from that original document. 69 The Council submits, first, that there is no obligation to record information, such as the content of the discussions at meetings of the Committee, in order that they can be made available. The applicant’s interpretation of the right of access to documents as a right to information is based on a misreading of Regulation No 1049/2001 and of the case-law. 70 Thus, it is clear from the provisions of Regulation No 1049/2001, in particular its title, Article 2(3), Article 3, Article 10(3) and Articles 11 and 14, that that regulation applies to documents that are in existence, that is, documents drawn up or received by an institution and in its possession. 71 Similarly, the judgment in Council v Hautala answers only the question whether it is necessary to grant partial access to an already existing document. There is no support in case-law for the contention that the institutions are obliged to prepare a minute of all meetings held by them. 72 That conclusion cannot be affected by the applicant’s argument that the principle of access to information in environmental matters is applicable on the basis of the Aarhus Convention since, at the time when the contested decision was adopted, neither the Aarhus Convention nor the regulation implementing it was in force. Moreover, the concept of environmental information established in that convention does not include committee discussions, on account of their oral nature, and neither of those legal instruments places an obligation on the Committee to draw up minutes of its meetings. 73 Furthermore, it follows from the decisions of the European Ombudsman that an institution is not obliged to produce documents pursuant to Regulation No 1049/2001 where no document exists to which access may be granted. 74 In the second place, the Council contends that, contrary to the applicant’s assertions, minutes are not documents that summarise other documents, but rather documents summarising an oral discussion. The applicant is therefore wrong to claim that the means needed to draw up minutes are readily at the Council’s disposal. – Findings of the Court 75 First, it is to be noted that the scope of Regulation No 1049/2001, pursuant to Article 2(3) thereof, extends only to ‘documents held by an institution, that is to say, documents drawn up or received by it and in its possession’. 76 Secondly, case-law provides that the concept of a document must be distinguished from that of information. The public’s right of access to the documents of the institutions covers only documents and not information in the wider meaning of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual (see, by analogy, the order in Case T-106/99 Meyer v Commission [1999] ECR II-3273, paragraphs 35 and 36). It is true that it is apparent from the judgment in Council v Hautala, cited in paragraph 50 above, that Council Decision 93/731/EC of 20 December 1993 on public access to Council documents (OJ 1993 L 340, p. 43), which preceded Regulation No 1049/2001, covered not only documents held by the institutions as such but also information contained within those documents (paragraph 23 of the judgment). However, access to information – within the meaning of that judgment – may be granted only if that information is contained within documents, which presupposes that such documents exist. 77 In the present case, since there are no minutes or other documents relating to the first item on the agenda of the meeting of the Committee of 19 December 2003, the Council was not obliged to provide the applicant with information on the content of that item at the meeting. 78 It follows that the Council has not infringed the applicant’s right of access to documents conferred by Regulation No 1049/2001 by refusing to provide it with information on the contents of the discussions relating to the first item on the agenda of the meeting of 19 December 2003, since that information did not exist in the form of a document that could be disseminated. 79 That finding cannot be altered by the applicant’s arguments relating to the Aarhus Convention or the proposal for a regulation on its application in view of the fact that, as the Council rightly pointed out, at the time when the contested decision was adopted, neither the Aarhus Convention nor the regulation implementing it was in force. 80 Accordingly, the second part of the third plea must be rejected. The third part, alleging that the Council refused to grant access to the records of those in attendance at the Committee meeting of 19 December 2003 – Arguments of the parties 81 The applicant states, first, that the records of Members of the Committee and of the Commission of discussions within the Committee are not excluded from the scope of Regulation No 1049/2001 and must therefore be accessible to the public, unless the exception laid down in Article 4(3) of Regulation No 1049/2001 relating to internal deliberations applies. 82 The applicant submits, secondly, that its request for information was sufficiently widely couched to encompass records of the Committee’s discussions and that the Commission’s narrow interpretation of the concept of ‘minutes’ is totally unjustified. Consequently, the records of the Members of the Committee and of the Commission should be disclosed since the exception laid down by Article 4(3) of Regulation No 1049/2001, which is an exception to a general obligation, must be narrowly construed. Moreover, the Court of First Instance has previously rejected the argument that the disclosure of a committee’s internal deliberations would necessarily undermine the smooth running and effectiveness of such deliberations. 83 The Council states that it is unaware whether the national delegations or the Commission prepared internal records or in what form. Since those records are exclusively for internal use by the Member State concerned or the Commission, they were not communicated to the Council. Consequently, as those records were not held by the Council, they fall outside the scope of Article 2(3) of Regulation No 1049/2001. 84 The Council also contends that, in its reply, the applicant has considerably changed its plea with regard to the claim relating to its request for access to the minutes of the meeting of 19 December 2003 by claiming that the Council infringed Regulation No 1049/2001 because it did not grant it access to the internal records of the Commission and of the Member States’ delegations. In that regard, the Council states that, according to case-law, the decision on the confirmatory application sets the boundaries of the scope of the judicial proceedings. It is apparent from the confirmatory application that the applicant did not ask the Council to grant it access to those internal records of the Commission and of the Member States’ delegations. Since it did not refuse access to those documents in the contested decision, the Council is not obliged to express a view on the applicant’s arguments on that point. – Findings of the Court 85 It is clear that, in the two letters which prompted the contested decision, the applicant did not ask the Council for access to the records of those in attendance at the meeting of 19 December 2003. Accordingly, the contested decision is not concerned with access to the records of those in attendance at the meeting of 19 December 2003. Given that, first, where an application is brought before it for annulment of a Council decision refusing access to documents, the Community judicature must, in accordance with Article 230 EC, review the legality of that decision alone and, secondly, that the contested decision is not a response to a request for access to the internal records of the Commission and the Member States’ delegations, the applicant’s arguments concerning access to those records cannot, as a consequence, be accepted. 86 In any event, even if it were necessary to consider that the applicant’s request was to be interpreted as including a request for access to the internal records of the Commission and of the Member States’ delegations, the Council could not communicate those records pursuant to Article 2(3) of Regulation No 1049/2001, since they were neither held nor received by the Council. 87 Consequently, the third part of the third plea must be rejected, as must this plea in its entirety. 88 It follows from all of the above that the action must be dismissed. Costs 89 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, 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 applicant has been unsuccessful, it must be ordered to pay the Council’s costs, as applied for by the defendant, in addition to bearing its own. 90 In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs. On those grounds, THE COURT OF FIRST INSTANCE (Fourth Chamber) hereby: 1. Dismisses the action; 2. Orders the applicant to bear its own costs and to pay those incurred by the Council; 3. Orders the Commission to bear its own costs. Legal Wiszniewska-Białecka Moavero Milanesi Delivered in open court in Luxembourg on 25 April 2007. E. Coulon H. Legal Registrar President * Language of the case: English.