Opinion of the Advocate General — ECLI:EU:C:2016:711
Date: 2016-09-21
Language of the case: English
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Germany

Summary — Judgment of the Court (First Chamber), 11 January 2017 1. Judicial proceedings — Request that the oral procedure be reopened — Application to lodge observations on points of law raised in the Advocate General’s Opinion — Conditions for reopening (Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Art. 83) 2. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Scope — Application for access seeking to obtain a search in databases — Included — Limits — Communication of information which cannot be extracted from those databases using existing search tools — Not included (European Parliament and Council Directive 1049/2001, Art. 2(3), 3(a) and (4)) 3. Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court 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.) 1. See the text of the decision. (see para. 19) 2. An electronic database may admittedly enable the extraction of any information contained therein. However, the possibility that a document may be created from such a database does not lead to the conclusion that the document concerned must be regarded as an existing document for the purposes of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. The right of access to documents of the institutions applies only to existing documents in the possession of the institution concerned and Regulation No 1049/2001 may not be relied upon to oblige an institution to create a document which does not exist. It follows that an application for access that would require the institution concerned to create a new document, even if that document were based on information already appearing in existing documents held by it, falls outside the framework of Regulation No 1049/2001. So far as documents of a static nature are concerned, in particular in paper form or in the form of a straightforward electronic file, it is sufficient to ascertain that the medium and its content exist in order to determine whether a document exists. On the other hand, the dynamic nature of electronic databases is scarcely compatible with that approach since a document which may be generated very easily from information already contained in a database is not necessarily an existing document within the strict sense of the term. Consequently, so far as electronic databases are concerned, the distinction between an existing document and a new document must be made on the basis of a criterion adapted to the technical specificities of those databases and in line with the objective of Regulation No 1049/2001, whose purpose, as is apparent from recital 4 and Article 1(a) thereof, is ‘to ensure the widest possible access to documents’. In those circumstances, all information which can be extracted from an electronic database by general use through preprogrammed search tools, even if that information has not previously been displayed in that form or ever been the subject matter of a search by the staff of the institutions, must be regarded as an existing document. It follows that the institutions, to satisfy the requirements of Regulation No 1049/2001, may be led to establish a document from information contained in a database by using existing search tools. On the other hand, any information whose extraction from a database calls for a substantial investment must be regarded as a new document and not as an existing document. Accordingly, any information which would, in order to be obtained, require an alteration either to the organisation of an electronic database or to the search tools currently available for the extraction of information must be considered to be a new document. (see paras 30, 31, 33-35, 37-40) 3. See the text of the decision. (see paras 58)