Judgment — ECLI:EU:T:2003:272
Date: 2003-10-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Fruit and vegetables;Provisions governing the Institutions;Access to documents;Bananas
Concepts: General;Pleas in law;Right of public access to documents
Procedure: Action for annulment - inadmissible
Origin: Italy

Summary of the Judgment 
1. Actions for annulment — Actionable measures — Definition — Measures with 
binding legal effects — Preparatory measures — Exclusion — Secretary-General's 
decision replacing an initial statement of position in the context of an application for 
access to Commission documents — Included 
(Art. 230 EC; Commission Decision 94/90, Art. 2(2)) 
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SUMMARY — CASE T-47/01 
2. Commission — Right of public access to Commission documents — Decision 
94/90 — Exceptions to the principle of access to documents — Authorship rule — 
Scope — Collection by the Commission, in a single computer database, of data 
notified by the Member States 
(Commission Decision 94/90) 
3. Commission — Right of public access to Commission documents — Decision 
94/90 — Exceptions to the principle of access to documents — Authorship rule — 
To be narrowly construed — Documents on which the decision-making process is 
based 
(Commission Decision 94/90) 
4. Commission — Right of public access to Commission documents — Decision 
94/90 — Exceptions to the principle of access to documents — Authorship rule — 
Documents from the Member States — Difficulties in gaining access to documents by 
applying to the Member States — Not relevant 
(Commission Decision 94/90) 
5. Commission — Right of public access to Commission documents — Decision 
94/90 — Exceptions to the principle of access to documents — Authorship rule — 
Possibility of relying on Regulation No 1049/2001 to justify a strict construction of 
that rule — Not possible 
(Regulation No 1049/2001 of the European Parliament and of the Council; 
Commission Decision 94/90) 
6. Commission — Right of public access to Commission documents — Decision 
94/90 — Review of initial refusal — Discrepancy in the reasoning — Misuse of 
powers — None 
(Art. 230 EC; Commission Decision 94/90) 
1. Only a measure the legal effects of 
which are binding on and capable of 
affecting the interests of an applicant 
by bringing about a distinct change in 
his legal position is an act against 
which an action for annulment may 
be brought under Article 230 EC. In 
the case of acts or decisions adopted by 
a procedure involving several stages, in 
particular where they are the cul­
mination of an internal procedure, only 
measures definitively establishing the 
position of the institution on the con­
clusion of that procedure, and not 
provisional measures intended to pave 
the way for the final decision, may be 
the subject of an action for annulment. 
In that regard, under the procedure 
established by Decision 94/90 on pub­
lic access to Commission documents, 
if, in the event of an initial refusal, the 
applicant makes a confirmatory appli-
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CO-FRUTTA v COMMISSION 
cation to the Secretary-General for 
review of that position, the Secretary-
General's decision constitutes the final 
statement of the institution's position. 
Consequently, only the measure 
adopted by the Secretary-General, 
which is a decision and which entirely 
replaces the previous statement of 
position, is capable of producing legal 
effects such as to affect the interests of 
the applicant and, therefore, of being 
the subject of an action for annulment 
under Article 230 EC. 
(see paras 28-29, 31) 
2. It is not enough to deprive the Member 
States of their authorship of those 
documents for the purposes of Decision 
94/90 on public access to Commission 
documents, that the Commission col­
lects in a single computer database data 
notified by those States where that 
institution confines itself to collecting 
the data, for the simple purposes of 
facilitating the tasks of comparison and 
checking for double counting of the 
data, but without being able itself to 
effect alterations, corrections or other 
treatment, since the appropriate checks 
or corrections of that data must be 
requested of the national authorities. 
(see para. 47) 
3. While the authorship rule, which 
makes an exception to the right of 
access provided for in Decision 94/90 
on public access to Commission docu­
ments, must be construed and applied 
strictly so as not to restrict that right of 
access, nevertheless, the argument that 
since that rule must be construed 
strictly it is not applicable to cases 
where the third-party documents 
sought are those on which the Com­
munity's decision-making process was 
based, cannot be accepted. Since the 
Code of Conduct adopted by Decision 
90/94 does not provide for any restric­
tion on the application of that rule, it 
must be construed as meaning that it is 
fully applicable to every sort of third-
party document to which access is 
sought, and it is not possible to have 
different levels of applicability accord­
ing to whether such documents may 
affect the commercial player concerned 
or according to their use by the Com­
mission in its decision-making process. 
In addition, the legal test of strict 
construction and application of the 
authorship rule is necessary particu­
larly when there are doubts as to the 
authorship of the document sought. If 
there are no doubts in that regard, since 
the Member States alone are the 
authors of the documents in question, 
that case-law cannot be relied upon. 
(see paras 57-58, 60-61) 
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SUMMARY — CASE T-47/01 
4. For the purposes of the procedure 
under Decision 90/94 on public access 
to Commission documents, difficulties 
in gaining access to the documents 
sought by applying to the Member 
States are irrelevant as regards the 
lawfulness of a decision of that institu­
tion refusing access to the documents 
sought on the ground that those States 
were their authors. The position taken 
by the Member States on the infor­
mation sought is a matter of domestic 
law and is governed by the restrictions 
laid down by the relevant national 
legislation, so that it cannot undermine 
the correct application by the Commis­
sion of the authorship rule laid down 
by the Community legislature. 
(see para. 64) 
5. Since Regulation No 1049/2001 
regarding public access to European 
Parliament, Council and Commission 
documents entered into force on 3 June 
2001 and applied only from 
3 December 2001, it cannot be relied 
upon against a Commission decision, 
which was adopted on an earlier date 
and in compliance with the regime laid 
down by Decision 94/90 on public 
access to Commission documents to 
justify a strict construction of the 
authorship rule which would result in 
its inapplicability. 
(see para. 65) 
6. A measure is vitiated by misuse of 
powers only if it appears on the basis of 
objective, relevant and consistent evi­
dence to have been taken with the 
exclusive, or at least the main, purpose 
of achieving an end other than that 
stated or evading a procedure specifi­
cally prescribed by the Treaty for 
dealing with the circumstances of the 
case. 
In that regard, since the system estab­
lished by the Code of Conduct con­
cerning public access to Council and 
Commission documents and put in 
place as regards the Commission by 
Decision 94/90 makes refusal to grant 
access to documents subject to a pro­
cedure involving two applications, in 
which only the Secretary-General's 
confirmatory decision constitutes the 
institution's final statement of position, 
any discrepancy in the reasoning stated 
by the Commission in the course of the 
review procedure cannot be regarded 
as an indication of misuse of powers 
since that review procedure is intended 
precisely to enable the Secretary-Gen­
eral to reconsider the matter, without 
constraint from previous statements of 
position by the competent services. 
(see paras 72-73) 
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