Judgment — ECLI:EU:T:2015:675
Date: 2015-09-23
Language of the case: English
Court formation: Second Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded;Action for annulment - decision unnecessary;Action for annulment - successful;Action for annulment - inadmissible
Origin: United Kingdom;Sweden

summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a plea which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, must be declared to be admissible. The same applies to a complaint made in support of a plea in law (judgment in In ’t Veld v Commission, cited in paragraph 229 above, paragraph 97). 236 As is apparent from the case-law cited in paragraph 229 above, the authority concerned must have due regard to the principle of proportionality when applying derogations to the right of access to documents. In particular, the aim of Article 4(6) of Regulation No 1049/2001 is to contribute to compliance with that principle by permitting partial disclosure if only part of the document requested is affected by an exception to the right of access, in order not to exceed the limits of what is appropriate and necessary in order to attain the objective pursued. In that context, the reference made by the applicants to the principle of proportionality is not a new plea in law, but a complaint which amplifies the plea in law based on an infringement of Article 4(6) of Regulation No 1049/2001. In essence, the applicants claim that, by infringing that provision, ECHA was at the same time in breach of the principle of proportionality. 237 It follows that the complaint of a breach of the principle of proportionality is admissible. 238 As regards the substance, the Court must however hold that this complaint is unfounded, since ECHA did not disregard the requirements of the principle of proportionality in so far as it did not grant, after a case-by-case assessment, access to some of the information requested. 239 It has already been stated in paragraph 232 above that, in the light of the legal presumption provided for in Article 118(2)(c) of the REACH Regulation, such a case-by-case assessment was unnecessary. That provision does not exceed the limits of what is appropriate and necessary in order to attain the objective pursued, namely the protection of commercial interests. 240 In that regard, it must be stated that that legal presumption does not necessarily preclude access to the information requested, that there is on the contrary the possibility of putting forward, when appropriate, factors which may rebut that presumption or indeed demonstrate the existence of an overriding public interest which justifies full or partial disclosure of the information requested (see, by analogy, the case-law cited in paragraph 172 above). Moreover, ECHA is, in any event, obliged to make public, in accordance with Article 119(2)(b) of the REACH Regulation, the total tonnage band within which a substance has been registered. Accordingly, the REACH Regulation allows, to a certain extent, access to information on the tonnage of a substance, even though its precise tonnage is not disclosed. 241 It follows from the foregoing that the second part of the second plea in law and, therefore, that plea in its entirety, must be rejected, in so far as it concerns point 2 of the request for information. 242 It follows that the action is unfounded in so far as it concerns the refusal of point 2 of the request for information. 4. The second and third pleas in law: infringement of Article 4(4) of Regulation No 1049/2001 (the second plea), and infringement of Article 4(1), (3) and (4) of the Aarhus Convention and Article 6(1) of Regulation No 1367/2006 (the third plea), in so far as they concern point 3 of the request for information a) The second plea in law: infringement of Article 4(4) of Regulation No 1049/2001 243 The applicants claim that ECHA failed to meet its obligations under Article 4(4) of Regulation No 1049/2001. 244 More specifically, the applicants claim that it was ECHA’s duty to consult the registrants who had made requests for confidentiality with respect to the non-disclosure of the total tonnage band. They add that, as regards other registrants, that consultation was unnecessary, since it was obvious that there was no ground for refusing to grant access to the information requested. 245 ECHA contends that consultation of third parties was not necessary, since it was not obliged to consult third parties concerning information which it did not hold. In addition, even if it did, that information was exclusively subject to the dedicated Internet dissemination provisions in Article 119 of the REACH Regulation. 246 First, it must be borne in mind that, in accordance with Article 119(2)(b) of the REACH Regulation, information on the total tonnage band is to be made public over the Internet, except where there has been a request for confidentiality which has been accepted as valid by ECHA. 247 Second, it must be observed that Regulation No 1049/2001 is to apply, in accordance with Article 2(3) thereof, ‘to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union’, and that, according to Article 118(1) of the REACH Regulation, ‘Regulation … No 1049/2001 shall apply to documents held by [ECHA]’. It follows that the right of access to documents of the institutions within the meaning of Article 2(3) of Regulation No 1049/2001 concerns only documents which exist and are in the possession of the institution concerned (judgment in Strack v Commission, cited in paragraph 105 above, paragraph 38). 248 In this case, ChemSec requested, by point 3 of the request for information, access to information on the total tonnage band within which the 356 substances in question were registered, in the event that the information covered by point 2 of the request for information, namely the precise tonnage of those substances, could not be accessed (see paragraph 35 above). 249 In Section 1(c) of the contested decision, ECHA stated that ‘the requested document [was] not held in [its] databases or files’ and that Regulation No 1049/2001 did not impose the obligation to create documents for the purpose of responding to requests for access to documents. In order to send to the applicants such a document, on the assumption that applications for registration had indeed been submitted for all the substances concerned, ECHA said that it would have to put together the information from all the registration dossiers and calculate the total tonnage bands of the substances concerned. ECHA stated that the same would hold for access to the cumulative precise tonnage band for each of the substances listed in the request, if the request was to be understood in that way. ECHA added however that it was arranging the collection of information provided on the tonnage band in the individual dossiers for the substances listed in the request. ECHA annexed to its letter a table containing that information, while explaining that ‘[t]he methodology for establishing the total tonnage band [was] … in development’ and that it ‘[could] not therefore guarantee the [accuracy] of that manually generated information’. 250 The applicants state that they did not receive the information requested in so far as their request related to tonnage bands by registrant, and not aggregated data. They add that Article 119(2)(b) of the REACH Regulation requires ECHA to make public the total tonnage band for each individual registrant. Further, while the applicants do not maintain that ECHA was in possession of the total tonnage bands, they consider that ECHA had to have that information available, since ECHA was under an obligation to disseminate it, in accordance with Article 119(2)(b) of the REACH Regulation. 251 It must be observed that, on the date of the contested decision, ECHA had not yet determined the methodology for establishing the total tonnage bands and therefore could not take action on the applicants’ request for access to that data. 252 It must also be observed that the REACH Regulation does not link the obligation under Article 119(2)(b) of that regulation to the right to access to documents provided for in Article 118(1) of that regulation, read together with Article 2(1) of Regulation No 1049/2001. Compliance with the obligation of dissemination over the Internet cannot therefore be enforced by means of a request for access to documents (see, to that effect and by analogy, the judgment in Strack v Commission, cited in paragraph 105 above, paragraph 44). From that perspective, a request for access to documents cannot compel ECHA to create certain data which does not exist, even if the dissemination of that data is laid down by Article 119 of the REACH Regulation. 253 Consequently, ECHA was entitled to reject point 3 of the request for information on the ground that it did not hold the information requested. Since ECHA was under no obligation to consult third parties concerning information which was not in its possession, the complaint cannot be made that ECHA infringed Article 4(4) of Regulation No 1049/2001. 254 It follows that the second plea in law must be rejected, in so far as it concerns point 3 of the request for information. b) The third plea in law: infringement of Article 4(1), (3) and (4) of the Aarhus Convention and Article 6(1) of Regulation No 1367/2006 255 The applicants complain that ECHA infringed Article 4(1), (3) and (4) of the Aarhus Convention and Article 6(1) of Regulation No 1367/2006, by refusing them access to information on the chemical substances which were the subject of their request for information. 256 In so far as the third plea in law also concerns point 3 of the request for information, it must be recalled that, under Article 44(1)(c) of the Rules of Procedure of 2 May 1991, an application initiating proceedings must contain a summary of the pleas in law on which the application is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. An applicant must, accordingly, specify the nature of the pleas in law on which the action is based, with the result that a mere abstract statement of the pleas in law does not satisfy the requirements of the Rules of Procedure (judgment of 12 September 2013 in Case T‑331/11 Besselink v Council, not published in the ECR, paragraph 38). 257 It is however clear that the applicants do no more than claim that the request for information relates to environmental information and that the derogations from the right of access to such information are governed by the Aarhus Convention and by Regulation No 1367/2006. The applicants fail however to explain how the Aarhus Convention or Regulation No 1367/2006 could have barred ECHA from rejecting point 3 of the request for information on the ground that the information requested was not in its possession. The submission of the plea concerned therefore is such that it is impossible to determine what infringement is alleged, in order to enable the Court to exercise its power of review. 258 Accordingly, the third plea in law must be rejected as being inadmissible in so far as it concerns point 3 of the request for information, in accordance with Article 44(1)(c) of the Rules of Procedure of 2 May 1991. 259 Further, it may be noted that Article 4(3)(a) of the Aarhus Convention expressly provides that a request for environmental information may be refused if the public authority to which the request is addressed does not hold the information requested. The first paragraph of Article 3 of Regulation No 1367/2006 states that ‘Regulation … No 1049/2001 shall apply to any request by an applicant for access to environmental information held by Community institutions and bodies …’, which also permits the conclusion that this reference concerns only documents which exist and are in the possession of the institution concerned. Consequently, even if it is assumed that the total tonnage bands constitute environmental information, that factor cannot call into question the lawfulness of the rejection of point 3 of the request for information. 260 It follows that the action must be dismissed in so far as it concerns point 3 of the request for information. 261 It follows from all the foregoing that, as regards point 1 of the request for information, there is no longer any need to adjudicate on the action, in so far as the names and contact details disclosure of which the applicants had requested were accessible on the ECHA website as from 23 April 2014 (see paragraph 121 above). As regards other information which was the subject-matter of point 1 of the request for information, the action must be upheld (see paragraph 164 above) and to that extent the contested decision must be annulled. 262 On the other hand, as regards the rejection of points 2 and 3 of the request for information, the action must be dismissed. Costs 263 Under Article 134(3) of the Rules of Procedure of the General Court, the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party. Furthermore, under Article 137 of those rules, where a case does not proceed to judgment the costs are in the discretion of the Court. 264 In this case, since the action has been partly upheld, the applicants, ECHA and Cefic must be ordered to bear their own costs. 265 In addition, under Article 138(1) of the Rules of Procedure, the institutions which intervened in the proceedings are to bear their own costs. Consequently, the Commission shall also bear its own costs. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Declares that there is no need to adjudicate on the action for annulment of the decision of the European Chemicals Agency (ECHA) of 4 March 2011, in so far as it refused to disclose information requested by point 1 of the request for information, to the extent that point 1 concerns the names and contact details of 6 611 companies which were accessible over the Internet on 23 April 2014; 2. Annuls the ECHA decision of 4 March 2011 in so far as it refused to disclose information requested by point 1 of the request for information, to the extent that point 1 concerns information not yet disclosed on 23 April 2014; 3. Dismisses the action as to the remainder; 4. Orders each party, including the European Commission and the European Chemical Industry Council (Cefic), to bear its own costs. Martins Ribeiro Gervasoni Madise Delivered in open court in Luxembourg on 23 September 2015. [Signatures] Table of contents Legal context A – International law 1. The TRIPS Agreement 2. Aarhus Convention B – EU law 1. Regulation (EC) No 1049/2001 2. Directive 2003/4/EC 3. The REACH Regulation 4. Regulation (EC) No 1367/2006 Background to the dispute and the contested decision Procedure and forms of order sought by the parties Law A – Admissibility 1. The objection of inadmissibility 2. The claims that proceedings are barred because the purpose of the action is inadmissible B – Whether the subject-matter of the dispute concerning the request for information continues to exist in so far as it relates to the names and contact details of registrants disclosed after the action was brought C – Substance 1. The first plea in law: infringement of Article 8(2) of Regulation No 1049/2001, covering points 1,2 and 3 of the request for information 2. The fourth and fifth pleas in law: the fourth concerning an infringement of the first indent of Article 4(2) and the first subparagraph of Article 4(3) of Regulation No 1049/2001, and the fifth concerning an infringement of the last subparagraph of Article 4(2) and the first subparagraph of Article 4(3) of Regulation No 1049/2001, in so far as they relate to point 1 of the request for information a) The first part: infringement of the first indent of Article 4(2) of Regulation No 1049/2001 b) The second part: infringement of Article 4(3) of Regulation No 1049/2001 3. The second, third, fourth and fifth pleas in law: infringement of Article 4(4) and (6) of Regulation No 1049/2001 (the second plea); infringement of Article 4(4) of the Aarhus Convention and Article 6(1) of Regulation No 1367/2006 (the third plea); infringement of the first indent of Article 4(2) of Regulation No 1049/2001 (the fourth plea), and infringement of the last paragraph of Article 4(2) of Regulation No 1049/2001 (the fifth plea), in so far as they concern point 2 of the request for information a) The third, fourth and fifth pleas in law: infringement of Article 4(4) of the Aarhus Convention and Article 6(1) of Regulation No 1367/2006 (the third plea); infringement of the first indent of Article 4(2) of Regulation No 1049/2001 (the fourth plea), and infringement of the last subparagraph of Article 4(2) of Regulation No 1049/2001 (the fifth plea) Undermining the protection of commercial interests Whether an overriding public interest justified disclosure – Whether there is an overriding public interest in cases of requests for environmental information – The concept of information relating to emissions into the environment within the meaning of Article 6(1) of Regulation No 1367/2006 – Weighing the various competing interests b) The second plea in law: infringement of Article 4(4) and (6) of Regulation No 1049/2001 The first part: infringement of Article 4(4) of Regulation No 1049/2001 The second part: infringement of Article 4(6) of Regulation No 1049/2001 and breach of the principle of proportionality 4. The second and third pleas in law: infringement of Article 4(4) of Regulation No 1049/2001 (the second plea), and infringement of Article 4(1), (3) and (4) of the Aarhus Convention and Article 6(1) of Regulation No 1367/2006 (the third plea), in so far as they concern point 3 of the request for information a) The second plea in law: infringement of Article 4(4) of Regulation No 1049/2001 b) The third plea in law: infringement of Article 4(1), (3) and (4) of the Aarhus Convention and Article 6(1) of Regulation No 1367/2006 Costs * Language of the case: English.