Opinion of the Advocate General — ECLI:EU:C:2014:455
Date: 2014-05-22
Language of the case: German
Subject matter: Provisions governing the Institutions;Access to documents;Data protection
Procedure: Action for annulment;Appeal - unfounded;Appeal - successful
Origin: Germany

Summary — Judgment of the Court (Second Chamber), 2 October 2014 1. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Failure by the institution concerned to comply with the time-limits laid down for answering a confirmatory application for access — Implied rejection — Replacement by the adoption of an explicit rejection — No possibility of bringing proceedings against the implied decision (European Parliament and Council Regulation No 1049/2001, Arts 7 and 8) 2. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Application concerning a very large number of documents — Right of the institution to extend the time-limit for adopting the decision — Exceptional nature — Possibility for the institution to agree with the applicant to change the time-limits laid down by the regulation — Not included — Possibility for the institution to refuse access to certain documents — Exceptional nature — Observance of the principle of proportionality (European Parliament and Council Regulation No 1049/2001, Arts 6(3), 7 and 8) 3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Refusal of access to a document on the ground that it does not exist or that it is not in the possession of the institution concerned — Fact which does not render the regulation inapplicable — No obligation on the institution to create the document referred to (European Parliament and Council Regulation No 1049/2001, Arts 4, 6(2), 8(1) and (3) and (11)) 4. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Obligation to create a register of documents — Possibility to ensure enforcement of the obligation by means of an application for access — Not included (European Parliament and Council Regulation No 1049/2001, Arts 2(1) and 11) 5. General Court — Organisation — Cases assigned to Chambers — Criteria — Possibility to derogate in order to ensure an even spread of the workload — Reassignment of a case after the application has been lodged — Lawfulness — No obligation to invite the parties to submit their observations (Charter of Fundamental Rights of the European Union, Art. 47, second para.; Rules of Procedure of the General Court, Art. 12) 6. Judicial proceedings — Duration of the proceedings before the General Court — Reasonable time — Non-compliance — Consequences — Length having no impact on the outcome of the dispute — Annulment of the General Court’s decision — Not included 7. Judicial proceedings — Division of jurisdiction between the various courts of the EU — Compensation claim for excessive length of judicial proceedings — Alleged lack of jurisdiction to give a ruling in a different composition (Art. 256(1) TFEU) 8. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of privacy and integrity of the individual — Whether provisions of Regulation No 45/2001 are applicable in their entirety — Applicant’s obligation to establish the necessity of the transfer of the personal data concerned — No obligation for the institutions to verify of their own motion the existence of grounds justifying a transfer (European Parliament and Council Regulations Nos 45/2001, Arts 8(b) and 18, and 1049/2001, Art. 4(1)(b)) 9. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal of access — Jurisdiction of the EU courts to order the production of documents in order to examine the merits of the refusal — Scope (Rules of Procedure of the General Court, Art. 65 and 66; European Parliament and Council Regulation No 1049/2001, Art. 4) 10. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of Justice of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) 11. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of privacy and integrity of the individual — Scope — Obligation to encode the names deleted in the documents provided to applicants — Scope — Limits (European Parliament and Council Regulation No 1049/2001, Art. 4(1)(b)) 12. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 170(1)) 13. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of commercial interests — Overriding public interests justifying the disclosure of documents — Reliance on the principle of transparency — Need to put forward considerations specific to the case (European Parliament and Council Regulation No 1049/2001, Art. 4(2) and (3)) 14. Actions for annulment — Jurisdiction of the EU Courts — Claim seeking that directions be addressed to an institution — Not permissible — No infringement of the right to effective judicial protection (Arts 264 TFEU and 266 TFEU; Charter of Fundamental Rights of the European Union, Art. 47) 15. Appeals — Grounds — Plea directed against the decision of the General Court on costs — Inadmissible where all other pleas dismissed (Statute of the Court of Justice, Art. 58, second para.; Rules of Procedure of the Court of Justice, Art. 184) 1. See the text of the decision. (see paras 24, 88-90) 2. Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents does not allow for the possibility of derogating from the time-limits laid down in Articles 7 and 8 thereof, since those time-limits are determinative as regards the conduct of the procedure for access to the documents held by the institutions concerned, which aims to achieve the swift and straightforward processing of applications for access to documents. In that regard, in the case of an application relating to a very long document or to a very large number of documents, an extension of 15 working days of the time-limit laid down in Article 8(1) of that regulation is authorised in exceptional cases. While, in such a case, Article 6(3) allows the institution concerned to find a fair solution with the applicant seeking access to documents in its possession, that solution can concern only the content or the number of documents applied for. In order to safeguard the interests of good administration, an institution may, in exceptional circumstances, refuse access to certain documents on the ground that the workload relating to their disclosure would be disproportionate as compared to the objectives set by the application for access to those documents. However, reliance on the principle of proportionality cannot allow the time-limits laid down by Regulation No 1049/2001 to be changed without creating a situation of legal uncertainty. (see paras 25, 26, 28) 3. In the framework of the scheme put in place by Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the fact that a document to which access has been requested does not exist or the fact that it is not in the possession of the institution concerned does not make that regulation inapplicable. Since, pursuant to Article 8(1) and (3) of Regulation No 1049/2001, any refusal of access to the documents requested from the administration may be subject to challenge by way of court proceedings whatever the reason relied on to refuse access, it is irrelevant to the right of challenge of the parties concerned that it is argued that access to a document must be refused for one of the reasons laid down in Article 4 of that regulation or that it is argued that the document requested does not exist. Any other outcome would make impossible review by the Courts of the European Union of the merits of decisions refusing access to documents held by the institutions, since it would suffice for the institution concerned to state that a document does not exist to avoid judicial review altogether. To the contrary, the institution concerned is under a duty to respond to the applicant and if necessary to justify its refusal of access for that reason before the courts. By contrast, neither Article 11 of Regulation No 1049/2001 nor the obligation of assistance in Article 6(2) thereof, can oblige an institution to create a document for which it has been asked to grant access but which does not exist. (see paras 39-42, 46) 4. As regards the obligation laid down in Article 11 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, since the regulation does not directly link the that obligation to the right to access to documents under Article 2(1) thereof, it is not possible to enforce compliance with the duty to register documents by means of an application for access to documents. (see para. 44) 5. Under Article 12 of its Rules of Procedure, the General Court is to lay down the criteria by which cases are to be allocated among the Chambers and the decision is to be published in the Official Journal of the European Union. In that regard, since the decision allows the President of the General Court to derogate from the method of allocating cases by rota with a view to ensuring an even spread of the workload and reliance on that derogation is not limited to the time the original application is lodged, there is nothing to prevent a case from being reassigned at another time. That interpretation is all the more appropriate since the reassignment of a case, in the interests of the good administration of justice, with a view to ensuring an even spread of the workload, pursues the objective of processing cases within a reasonable time, in accordance with the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union. Furthermore, given that, in the same way as the initial assignment of a case, its reassignment to a formation other than that initially contemplated does not confer a right on the parties to express their view on that measure of administration of justice, an argument based on an infringement of the right to be heard before the reassignment of the case is unfounded. (see paras 50-53) 6. Where there are no indications that the excessive length of the proceedings before the General Court affected the outcome of the dispute, failure to deliver judgment within a reasonable time cannot lead to the setting aside of the judgment under appeal. (see para. 62) 7. When hearing a claim for compensation relying on the allegedly excessive length of legal proceedings before the General Court, it is for the latter, which has jurisdiction under Article 256(1) TFEU, to determine such claims sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised. (see para. 64) 8. See the text of the decision. (see paras 70, 101, 102, 106, 107, 111, 115) 9. See the text of the decision. (see paras 73, 74, 76-78, 136) 10. See the text of the decision. (see para. 79) 11. A systematic obligation to encode names which have been deleted from a document transmitted following a request pursuant to Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents would constitute a particularly heavy burden which serves no purpose. The institutions may, in specific cases, rely on the interests of good administration after weighing the interests of the applicant for access to the documents and the workload which would result from processing his application. (see para. 113) 12. See the text of the decision. (see para. 119) 13. See the text of the decision. (see paras 128, 130, 131) 14. The Courts of the European Union cannot, in principle, issue orders to an EU institution without encroaching upon the prerogatives of the administration. Thus, in accordance with Article 264 TFEU, it was only open to it to annul the contested act. Furthermore, Article 266 TFEU also does not provide for the possibility of issuing orders to the institutions. That finding cannot be called into question by an argument based on Article 47 of the Charter of Fundamental Rights of the European Union, since that article is not intended to change the system of judicial review laid down by the Treaties. (see paras 145-147) 15. See the text of the decision. (see para. 151)