Opinion of the Advocate General — ECLI:EU:C:2009:553
Date: 2009-09-15
Language of the case: German
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment;Appeal - successful
Origin: Germany

summary, set out the reasons for which the Commission had denied the appellant full access to the file on Contract LIEN 97‑2011. 72. However, as regards the other two defects adversely affecting the decision of 26 July 2002, it is common ground, on the one hand, that that decision was not adopted by the competent authority designated by Article 4 of the Annex to Decision 2001/937, namely the Secretary General of the Commission, and did not give any indication of the remedies available, contrary to the institution’s duty to the applicant under Article 8(1) of Regulation No 1049/2001, and, on the other, that the Court of First Instance neglected to examine those defects. 73. At this stage, the Court could confine its review to determining whether, if the Court of First Instance had examined the two irregularities adversely affecting the decision of 26 July 2002, it would have drawn the conclusion that that decision was divested of any ‘legal effectiveness’ in the sense that it had to be regarded as void or non-existent, as the appellant claims. 74. It seems to me, however, that the complaint that the Court of First Instance did not examine certain facts which were allegedly put before it calls for a more comprehensive examination of this ground of appeal. 75. I therefore suggest that it be ascertained first of all whether the Court of First Instance was obliged to examine the two defects adversely affecting the decision of 26 July 2002 which were identified by the appellant in its appeal. (i) The obligation to take into consideration the lack of competence of the author of the decision of 26 July 2002 76. With regard to the lack of competence of the author of the decision of 26 July 2002, it is common ground that that complaint was not raised before the Court of First Instance. 77. The question therefore arises whether the Court of First Instance should have raised such an irregularity of its own motion. 78. As I have already had occasion to state in points 102 to 109 of my Opinion in Common Market Fertilizers v Commission, (13) the issue of lack of competence of the author of the act must, in principle, be raised by the Community judicature of its own motion (14) as a matter of public policy. In my view, that issue, in principle, satisfies the two fundamental criteria, identified by Advocate General Jacobs in points 141 and 142 of his Opinion in Salzgitter v Commission, (15) for establishing: – ‘whether the rule infringed is designed to serve a fundamental objective of the Community legal order and whether it plays a significant role in the achievement of that objective’; and – ‘whether the rule infringed was laid down in the interest of third parties or the public in general and not merely in the interest of the persons directly concerned’. (16) 79. It is true that the rules on competence are designed to guarantee a fundamental objective (or value) of the Community legal order, namely institutional balance, and are generally established in the public interest. 80. The fact remains, however, that if, in principle, the issue of lack of competence of the author of the act must be raised by the court of its own motion, the best approach is to assess on a case-by-case basis – that is to say by reference to the specific rule of competence supposedly infringed – whether the aforementioned two criteria, including therefore that relating to the significant role of the rule in attaining the objective or fundamental value in question, are fulfilled. (17) 81. It is precisely in that regard, in my view, that the rule infringed in this case, namely Article 4(1) of the Annex to Decision 2001/937, under which the power to reply to confirmatory applications for access to documents is delegated to the Secretary General, does not play a significant role in the observance of institutional balance. It is rather one of the Commission’s internal management or administrative measures, in accordance with the legal basis on which it is founded, that is to say Article 14 of the Rules of Procedure of the Commission, in the version applicable at the time when the decision of 26 July 2002 was adopted. (18) Failure to comply with such a rule does not therefore seem to me to be one of the questions which the Community judicature must examine of its own motion. 82. It follows, in my view, that the Court of First Instance did not commit any error of law by not raising of its own motion the lack of competence of the author of the decision of 26 July 2002. (ii) The obligation to take into consideration the failure to indicate the remedies available when the decision of 26 July 2002 was adopted 83. It is important to bear in mind that, although, in the orders in Guérin automobiles v Commission, (19) the Court held that there was no general obligation on the Community administrative authorities to inform individuals of the legal remedies available, that statement is, however, conditional on ‘the absence of express provisions of Community law’. 84. As regards public access to documents of the European Parliament, the Council and the Commission, Article 8(1) of Regulation No 1049/2001 expressly requires an institution which totally or partially refuses access to ‘inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 [EC] and 195 [EC], respectively’. 85. In this case, as I have already said, the Commission therefore had a duty to inform the applicant of the remedies available against the decision of 26 July 2002 when it was adopted. (20) 86. As the documents lodged before the Court of First Instance show, and as the Commission acknowledged in its response to the appeal, (21) the appellant did indeed rely, albeit only briefly in the context of the examination by the Court of First Instance of the admissibility of its action for annulment, on a failure to indicate the remedies available against the decision of 26 July 2002. 87. It is true that, according to case-law, the Court of First Instance is not obliged to respond in detail to every single argument advanced by a party in order to give reasons for its judgment to the requisite legal standard. (22) 88. None the less, in the light of the requirement laid down by Article 8(1) of Regulation No 1049/2001, of which the Court of First Instance could not have been unaware, and the manifest failure on the part of the Commission to indicate the remedies available when it adopted the decision of 26 July 2002, the appellant’s intention in referring to the irregularity affecting that decision was clearly that the Court of First Instance should examine the possible consequences of that failure as regards the admissibility of the action brought before it, which, it should be remembered, was being expressly contested by the Commission. 89. As I shall explain in more detail later in this Opinion, such an examination ought in particular to have led the Court of First Instance to consider whether reliance as against the appellant on the time-limits for bringing proceedings was precluded. 90. Consequently, in my view, by refraining from examining the failure to indicate the remedies available against the decision of 26 July 2002, as the appellant had asked it to do, and, therefore, by failing to consider the possible consequences of that irregularity when a decision based on Article 8(1) of Regulation No 1049/2001 was adopted, the Court of First Instance at the very least gave inadequate reasons (23) for the conclusion it reached in the judgment under appeal to the effect that the decision of 26 July 2002 constituted an act open to challenge which had become definitive when the action was brought against the act adopted on 14 February 2005. 91. As I see it, the error of law with respect to the obligation to state reasons on which I have just focused cannot be made good by the Court on appeal because the review which the Court is required to carry out in this case does not relate exclusively to grounds of pure law but, at least in part, to the assessment of facts which were not examined by the Court of First Instance. (24) 92. It follows that the judgment under appeal should be set aside in part, that is to say in so far as, principally, it declares the action brought by the appellant inadmissible on the ground that it was brought against an act which was merely confirmatory of the act adopted on 26 July 2002. 93. If the Court took the same approach, there would be no further need to rule on the second ground of appeal as the latter would not be capable of bringing about a more extensive setting-aside than that which I have just proposed. (25) 94. It would then be sufficient for the Court to rule on the merits of the third ground of appeal directed against the assessment made by the Court of First Instance ‘for the sake of completeness’ or, more correctly, in the alternative, to the effect, essentially, that, even if the letter of 14 February 2005 was not merely confirmatory, the action for annulment brought by the appellant would in any event have been premature. The judgment under appeal could be set aside in full only if the third ground of appeal were upheld. 95. However, as I have said earlier, the third ground of appeal must in my view be rejected. 96. Therefore, even if the Court examined the first ground and took the view that the judgment of the Court of First Instance must be set aside in part, there would be no need for it to decide on the second ground of appeal. 97. Moreover, it is important to make clear at this stage that, even if the Court decides to uphold the first and third grounds of appeal and considers itself able to rule on the admissibility of the action for annulment at first instance, that action could not, in my view, be found to be admissible on the basis of the appellant’s arguments to the effect that the decision of 26 July 2002 was non-existent or void or the fact, if that is the case, that reliance on the time-limits for bringing proceedings against that decision was precluded. 98. First, with regard to the alleged non-existence of the decision of 26 July 2002, it should be recalled that, according to settled case-law, acts of the Community institutions are in principle presumed to be lawful and accordingly produce legal effects, even if they are tainted by irregularities, until such time as they are withdrawn or annulled. (26) 99. It is only by way of exception to that principle that acts tainted by an irregularity whose gravity is so obvious that it cannot be tolerated by the Community legal order must be deemed to have had no legal effect, even provisional, that is to say that they must be regarded as legally non-existent. The purpose of this exception is to maintain a balance between two fundamental, but sometimes conflicting, requirements with which a legal order must comply, namely stability of legal relations and respect for legality. (27) 100. The gravity of the consequences attaching to a finding that an act of an institution of the European Community is non-existent requires that, for reasons of legal certainty, such a finding should be reserved for quite extreme situations. (28) 101. The Court has thus refused to regard as legally non-existent decisions that were tainted by irregularities consisting in the failure to authenticate the act and/or the lack of competence of its author. (29) 102. In this case, in the light of the case-law just cited, the irregularity affecting the letter of 26 July 2002 concerning the failure to indicate the remedies available certainly does not seem to me to be of such obvious gravity as to render it so intolerable to the Community legal order that it brings about the legal non-existence of that letter. 103. Conversely, and secondly, as the Commission rightly maintains, that irregularity could have been challenged in the context of an action for annulment, under Article 230 EC, against the decision contained in the letter of 26 July 2002, on grounds of infringement of Article 8(1) of Regulation No 1049/2001. 104. It is, however, common ground that the appellant did not avail itself of that option against the letter in question, not because it was unaware of the remedy of court proceedings to which reference should have been made when the decision of 26 July 2002 was adopted, in accordance with Article 8(1) of Regulation No 1049/2001, but essentially for reasons of expediency, as the appellant indicated for the first time in paragraph 10 of its appeal. (30) 105. Moreover, even if the alleged defect could of itself have brought about the annulment of the decision of 26 July 2002, (31) the Community judicature could not, however, have invalidated that decision in the context of an action brought exclusively against the letter of 14 February 2005 without disregarding the scope of the dispute. 106. Thirdly, and finally, I likewise do not consider that the failure to provide information on the remedies available when the decision of 26 July 2002 was adopted has the further consequence in this case of precluding reliance on the time-limits for bringing proceedings. 107. It is generally true that the national laws of a number of Member States penalise a failure by the administrative authorities to indicate the remedies available not by rendering the decision concerned unlawful but by precluding reliance on the time-limits for seeking the judicial remedies which are available against the administrative act at issue. (32) Generally, that solution thus permits the national court to disapply the time bar applicable to a remedy in cases where the administrative authorities have not fulfilled their obligation to the addressee of the act to provide information on the remedies available. Such a penalty is, in principle, expressly provided for by law or by a measure of general application, but may also be inferred by the courts. 108. The objection might be raised that, in Community law, neither the Treaty nor Regulation No 1049/2001 has expressly conferred on the Community judicature jurisdiction to penalise a failure to provide information on the remedies available against a decision refusing access to documents by precluding reliance as against the addressee of that decision on the time-limits for bringing proceedings. 109. In my view, however, such jurisdiction may be inferred from the system of remedies provided for in the EC Treaty, in particular the jurisdiction conferred on the Court of Justice under Article 230 EC and the requirement under Article 8(1) of Regulation No 1049/2001. To allow the Community judicature to preclude reliance on the time-limits for bringing proceedings in cases where the Community administrative authorities have failed to inform the addressee of the remedies available against a decision refusing access to documents will enable individuals to seek review of the legality of the action taken by the Community institutions in this field by thus guaranteeing their right to obtain a judicial determination. 110. In short, therefore, this would amount not to conferring an additional head of jurisdiction on the Community judicature but to permitting it to perform fully its function of reviewing the legality of acts adopted by the Community institutions in the context of the application of Regulation No 1049/2001. 111. At the hearing before the Court, the Commission also submitted, in arguing that reliance on the time-limits for bringing proceedings should not be precluded, that, under Article 8(3) of Regulation No 1049/2001, failure to reply to a confirmatory application within the prescribed period is equivalent to a refusal by implication against which the time-limit for court proceedings starts to run. Since an implied negative decision by definition does not contain any indication of the remedies available, it would, according to the Commission, be unreasonable to conclude from this that the time-limits for bringing proceedings can never be relied on as against the addressee of such a decision. 112. Although it is true that that argument lacks neither force nor logic, I nevertheless doubt that the general inference that must be drawn from it is, as the Commission also argued at the hearing, that the indication of the remedies available, which the administrative authorities are required to give under Article 8(1) of Regulation No 1049/2001, can be regarded only as a mere reminder of the relevant provisions of the EC Treaty and failure to provide that information cannot be penalised. 113. In the administrative legal systems of certain Member States, such as the French Republic and the Italian Republic, under whose law silence from the administrative authorities beyond a given time-limit is equivalent to a rejection of an application, that situation has not been an insurmountable obstacle to the introduction of provisions requiring the administrative authorities to indicate the judicial remedies available when adopting an express individual decision of refusal and penalising failure to provide that information by precluding reliance on the time‑limits for bringing proceedings. 114. In this case, the decision of 26 July 2002 was indeed an express decision refusing to disclose to the appellant all the documents relating to Contract LIEN 97-2011. 115. So, while, in my view, there is no reason why the failure to indicate the remedies available when adopting a decision under Article 8(1) of Regulation No 1049/2001 should not be open to the penalty of precluding reliance on the time-limits for bringing proceedings, the question remains whether the penalty should be automatic or on a case-by-case basis. 116. In that regard, it seems reasonable to take the view that there must be a presumption that, in the absence of information on the remedies available, as required by Article 8(1) of Regulation No 1049/2001, the applicant is assumed to have been unable to exercise his right of action within the prescribed period. Such a presumption strikes me as being consistent with the objectives pursued by Regulation 1049/2001 of giving the fullest possible effect to the right of access and of facilitating the exercise of that right by the citizens of the European Union. (33) 117. None the less, I also consider that that presumption should not be absolute. It must be possible for the court, when considering whether to preclude reliance on the time-limits for bringing proceedings, to choose not to on the basis of the specific circumstances of each case. In particular, the degree of information provided to the applicant or his clearly demonstrated intention not to assert his right to pursue a judicial remedy should, in my view, constitute relevant factors which must be taken into consideration. (34) 118. In the present case, as stated in point 104 of this Opinion, following the adoption of the decision of 26 July 2002, the appellant chose to lodge a complaint with the Ombudsman, an extrajudicial remedy which must also be mentioned in any decision rejecting a confirmatory application for access to documents, rather than bring an action for annulment before the Court of First Instance, for reasons of expediency, as it indicated for the first time in paragraph 10 of its appeal. (35) It was therefore fully informed of the possibility of bringing an action for annulment against the decision of 26 July 2002, but did not avail itself of it. 119. In the light of all the foregoing considerations, I take the view that the action at first instance could not be declared admissible on the ground that the failure to indicate the remedies available when the decision of 26 July 2002 was adopted rendered that decision non-existent or void or precluded reliance on the time-limits for bringing court proceedings. 120. In the light of the foregoing observations, it would not be necessary to rule on the merits of the second ground of appeal. I shall none the less examine that ground of appeal for such purposes as this may serve. 2. The second ground of appeal, based on the erroneous legal classification of the letter of 14 February 2005 as constituting a merely confirmatory act (a) Arguments of the parties 121. First, the appellant takes the view that the Court of First Instance wrongly refused to recognise, in paragraphs 87 to 92 and 101 of the judgment under appeal, that the conclusions and results of the inquiry carried out by the Ombudsman constituted new factors allowing the time-limits for bringing proceedings to be reopened. Secondly, it maintains that, in the light of the Commission’s general conduct, it is incomprehensible that, in paragraphs 93 to 100 of the judgment under appeal, the Court of First Instance held that the letter of 14 February 2005 had not been preceded by reconsideration of the appellant’s situation. According to the appellant, it is perfectly clear that the Commission treated its letter of 22 December 2004 as a completely new application for access to the file relating to Contract LIEN 97-2011 and that, after analysing the situation, the Commission wished to give an independent and final reply to it. In those circumstances, the letter of 14 February 2005 could not therefore be classified as an act merely confirming the decision of 26 July 2002. At the hearing before the Court, the appellant contended that, in any event, the Court’s case-law on the inadmissibility of an action brought against an act which merely confirms a previous act not challenged within the prescribed period is not relevant in the context of the application of the provisions of Regulation No 1049/2001. 122. The Commission rejects the criticisms directed against the assessments made by the Court of First Instance. In its view, the Court of First Instance rightly held, in paragraph 86 of the judgment under appeal, that the Ombudsman’s decision finding an instance of maladministration cannot call into question the definitive nature of the decision adopted by the Commission on 26 July 2002. A contrary solution would have the effect of undermining the lack of suspensory effect of the complaint procedure initiated before the Ombudsman on the time-limits for bringing court proceedings. Such a ruling would also disregard the non-judicial character of the procedure initiated before the Ombudsman and the unenforceable nature of his opinions. As for the criterion of non-reconsideration of the appellant’s situation, the Commission considers, in substance, and in response to a written question put by the Court under Article 54a of its Rules of Procedure, that this is not a separate condition from that requiring the existence of a new factor, which is lacking in this case. 3. Assessment (a) Applicability of the case-law on the inadmissibility of an action brought against an act which merely confirms a previous act not challenged within the prescribed period in the context of Regulation No 1049/2001 123. It is settled case-law that the time-limits prescribed in Article 230 EC are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were established in order to ensure that legal positions are clear and certain. (36) 124. Moreover, according to the case-law, an action for annulment directed against a decision merely confirming a previous decision not challenged within the prescribed period is inadmissible. (37) 125. The Court of First Instance applied that case-law in the judgment under appeal when it held that the letter of 14 February 2005 rejecting the application for full access to the file relating to Contract LIEN 97-2011 constituted an act which merely confirmed the decision of 26 July 2002. 126. The Court of First Instance did not indicate (at least not expressly) any doubt as to the applicability of such case-law in the context of public access to documents under Regulation No 1049/2001. 127. As I have already indicated in point 48 of this Opinion, in its appeal, the appellant criticises the Court of First Instance for having wrongly applied the case-law on merely confirmatory acts rather than for having considered that case-law to be relevant in the context of the application of the provisions of Regulation No 1049/2001. 128. It is true that the appellant objects to the refusal of the Court of First Instance to assess the application submitted on 22 December 2004 as an entirely new application, when, in its submission, it was considered as such by the Commission in its reply of 14 February 2005. (38) 129. That claim is, however, more akin to a request for a fresh assessment of the facts, which certainly cannot be considered by the Court on appeal, (39) or to a complaint that the Court of First Instance distorted the clear sense of the evidence, than to an invitation to the Court to verify whether the case-law on merely confirmatory acts is properly applicable in the context of the application of Regulation No 1049/2001. 130. Moreover, it was only belatedly, that is to say following the questions put by the Court prior to the hearing, that the appellant claimed that the case-law on merely confirmatory acts was inapplicable. 131. The conclusion might therefore be drawn from this that, in the present case, the Court does not have to decide whether the Court of First Instance committed an error of law in finding, by implication but necessarily, that the case-law on merely confirmatory acts was applicable in the context of Regulation No 1049/2001. 132. It is, however, legitimate to ask, on the one hand, whether, in particular where the Court of First Instance is required to settle a question relating to the conditions governing the admissibility of an action for annulment, be it following an objection of inadmissibility or where it carries out such an examination of its own motion, (40) that court does not have a duty to take account of all the provisions of the legislation applicable to the facts presented to it, including those, if any, which might preclude a possible declaration that the action concerned was inadmissible and, on the other hand, whether the Court of Justice should not raise of its own motion the failure of the Court of First Instance to take into consideration the provisions of the legislation it is required to consider when deciding on the admissibility of an action for annulment. 133. The reply to the first part of that question must, in my view, be clearly positive. Its task of juris dictio requires the court to be able to apply to the facts put before it by the parties the rules of law relevant to the resolution of the dispute. Once the legislation relevant to the dispute has been defined, it is the duty of the court exercising judicial review to apply that legislation in full, as it may otherwise be forced to base its decision on erroneous legal considerations. Such a requirement forms part of the impartiality of justice and its proper administration, in particular where the court adjudicating on the substance has to examine the conditions governing the admissibility of an action for annulment, which, as already indicated, it may verify of its own motion. 134. As regards the second question, I also consider that the Court of Justice should not tolerate a distortion of the law in relation to the conditions governing the admissibility of an action for annulment, an issue which, in my view, meets the criteria set out in point 78 of this Opinion. In accepting such a distortion, the Court would be allowing its own judgment to be tainted by errors of law committed at first instance which prompted the Court of First Instance to declare the action inadmissible when, irrespective of the other assessments in the judgment under appeal and in the light of the comments that follow, consideration of all the provisions of the applicable legislation should lead to the conclusion that the action for annulment was admissible. (41) 135. Consideration of all the provisions of Regulation No 1049/2001 should have led the Court of First Instance to dismiss the objection of inadmissibility raised by the Commission, which the latter had based on the case-law of the Court of Justice relating to merely confirmatory acts. 136. In my view, the Court of First Instance would have come to that conclusion on a reading of Article 4(7) in conjunction with Article 6(1), last sentence, of Regulation No 1049/2001. 137. In that regard, it is important to recall, on the one hand, that Article 4(7) of Regulation No 1049/2001 provides that the exceptions to access to a document of the institutions are to apply only for the period during which protection is justified on the basis of the content of the document, the maximum period being, in principle, 30 years. On the other hand, under Article 6(1), last sentence, of that regulation, the applicant is not obliged to state reasons for the application. 138. A combined reading of those provisions means that an application for access to a document may be made at any time during the maximum period of 30 years in order to ascertain from the institution concerned, even after the partial or total rejection of an initial application for access, whether the conditions for the application of one of the exceptions to public access to a given document continue to apply in the light of the actual content of the document, the applicant being under no obligation to give reasons for the application. This interpretation thus also includes the situation where, pursuant to Regulation No 1049/2001, an application is submitted after an identical previous application, in which case the applicant does not have to rely on the emergence of a new fact between the rejection of the first confirmatory application and the new application in order to establish the admissibility of any court proceedings brought against rejection of the latter application. 139. In other words, in the light of the abovementioned provisions of Regulation No 1049/2001, the fact that a decision refusing access to a particular document, which was adopted at a given point in time, has become definitive in relation to an applicant cannot prevent the applicant from submitting a new application for access relating to the same subject-matter. It is then the duty of the institution concerned to ascertain whether the conditions under which the application was initially refused are still present, whether the applicant requests it to do so or not. A new refusal decision, provided that it has been adopted in accordance with the two-stage procedure laid down in Regulation No 1049/2001, must be open to challenge before the Community judicature. Such a decision would indeed be confirmatory but not merely confirmatory, as the assessment of the conditions under which the application was refused would have been carried out at a different time from that conducted when the first decision was adopted. 140. Since such an act is not merely confirmatory, there is no requirement of legal certainty which should lead the Community judicature to find that the time‑limits for bringing court proceedings had not been complied with. 141. On the other hand, the effect of the view that the case-law on the merely confirmatory nature of an act applies in the context of Regulation No 1049/2001 is ultimately to crystallise the reasons for the refusal to grant access to a given document and, hence, to disregard the necessarily temporary nature of the exceptions to the principle of the widest possible public access to the documents held by the institutions, as provided for by that regulation. 142. Finally, it should be noted that the approach set out above is not of course meant to give free rein to any improper, repeated applications and bringing of actions. In this regard, it is common ground that Community law does not tolerate the improper use of its provisions. In any event, there is not the slightest suggestion in the documents before the Court that the provisions of Regulation No 1049/2001 are being misused in this case. 143. I therefore consider that the Court of First Instance erred in accepting the Commission’s objection of inadmissibility, based on the alleged merely confirmatory nature of the contested act, on the assumption that the case-law of the Court of Justice relating to merely confirmatory acts was relevant in the context of the application of the provisions of Regulation No 1049/2001. 144. In those circumstances, and in so far as the Court examines the second ground of appeal, it would, in my view, be appropriate to set aside in part the judgment under appeal. (i) Application to this case of the case-law on the inadmissibility of an action brought against an act which merely confirms a previous act not challenged within the prescribed period 145. Even if the Court does not accept the proposal made in the previous paragraph of this Opinion, the second ground of appeal should none the less be upheld, in my view, on the ground that the Court of First Instance wrongly classified the Ombudsman’s decision finding an instance of maladministration in relation to the processing of the application for access to documents in this case as not constituting a (substantial) new factor (or fact) within the meaning of the case-law on acts merely confirming a previous act not challenged within the time-limits for bringing court proceedings. (42) 146. In that regard, I would point out first that, in order to conclude, principally, that the letter of 14 February 2005 was merely confirmatory and therefore not open to challenge, the Court of First Instance held, on the one hand, that that letter did not contain any new factor as compared with the decision of 26 July 2002 and, on the other hand, that it had not been preceded by reconsideration of the situation of the appellant, the addressee of the decision of 26 July 2002. 147. The Court of First Instance relied on that twofold criterion by reference to its own case-law and paragraph 18 of the judgment of the Court of Justice in Grasselli. (43) 148. However, as the Commission rightly maintains in reply to a written question put by the Court, and contrary to the findings of the Court of First Instance in paragraphs 69 and 82 of the judgment under appeal, it does not seem to me to be in any way clear from the ‘previous decisions’ or ‘settled case-law’ of the Court that the fact that the situation of the addressee of the previous act was not reconsidered constitutes an independent criterion for identifying an act as merely confirmatory of a previous decision. 149. It is true, and I am not unaware of the fact, that, in two recent orders, the Court confirmed the existence of the two cumulative conditions, also referred to in paragraphs 69 and 82 of the judgment under appeal, for identifying the merely confirmatory nature of an act. (44) 150. However, it follows from most of the case-law of the Court – some of it cited in the two abovementioned orders –, including paragraph 18 of Grasselli v Commission, cited in paragraph 82 of the judgment under appeal, that the merely confirmatory nature of an act derives exclusively from the absence of any new factor or, more precisely, any substantial new fact as compared with the previous act which it confirms. (45) 151. By contrast, the fact that the situation of the addressee of the previous act was not reconsidered does not make it possible to determine whether the administration refrained from reconsideration because no new factor or fact had emerged between the previous decision and the contested act or, on the contrary, whether it refrained from such reconsideration despite the fact that it was obliged to reconsider a previous decision which had become definitive precisely because a (substantial) new factor or fact had emerged. 152. Furthermore, the only relevant judgment of the Court of Justice, that is to say Herpels v Commission (46) – on which the abovementioned orders were founded in order to confirm the case-law of the Court of First Instance to the effect that non-reconsideration of the situation of the addressee of the act constitutes an independent criterion for identifying the merely confirmatory nature of an act –, despite some ambiguity in its wording, concerned the converse situation, that is to say the definitive outcome of a reconsideration of the addressee’s position following a substantial amendment of the decision initially taken by the administration, with the result that the contested act could not be regarded as a mere confirmation of that decision. (47) 153. It therefore seems rash to draw from that single judgment of the Court the general conclusion that the fact that the addressee’s situation was not reconsidered constitutes a relevant criterion for identifying the existence of a merely confirmatory act. 154. In short, it is only the emergence of a (substantial) new factor or fact that justifies the reconsideration by the administration of a previous decision which has become definitive. (48) In that case it is logical that the lawfulness of the decision adopted following such reconsideration may, if appropriate, be challenged before the Community judicature even if that decision confirms the previous decision in full or in part. (49) 155. Similarly, it is the non-emergence of a new factor or fact that justifies non-reconsideration of the previous decision which has become final. However, in that case, the non-existence of a new factor or fact is sufficient to establish the inadmissibility of an action brought against the act confirming the previous decision. 156. For, if the administration reconsiders the decision when it is not obliged to do so because no new factor or fact has emerged, an action against the act confirming the previous decision will be inadmissible, (50) as the act merely confirms the decision. 157. Conversely, if the administration refuses to reconsider a previous decision which has become definitive when the application for reconsideration is properly based on new factors or facts, an action for annulment of the decision will be admissible. (51) 158. It therefore appears to me, in the light of most of the case-law of the Court summarised above, that the fact that the administration does not reconsider a previous decision which has become definitive does not, as such, make it possible to determine that the act subsequently adopted is merely confirmatory. 159. Consequently, in this case, the relevance of the criticisms which the appellant directs against the assessments made by the Court of First Instance concerning the fact that the decision of 26 July 2002 was not reconsidered depends entirely on the merits of its complaints concerning the finding of the Court of First Instance as to the non-emergence of new factors. 160. As I have already said, for the reasons set out below, the line of argument advanced by the appellant to challenge the finding of the Court of First Instance to the effect that the Ombudsman’s decision identifying an instance of maladministration in relation to access to the documents requested in this case did not constitute a new factor within the meaning of the case-law referred to above must, in my view, be upheld. 161. It should be recalled here that, in dismissing the argument put forward by the appellant at first instance, the Court of First Instance took the view that the orders in Internationaler Hilfsfonds v Commission (52) precluded such a classification of the Ombudsman’s decision, despite the factual differences between the present case and that which gave rise to the abovementioned orders (paragraphs 84 and 85 of the judgment under appeal). It also held, in paragraph 86 of the judgment under appeal, that, in the light of Article 2(6) of Decision 94/262, according to which complaints submitted to the Ombudsman are not to affect time-limits for appeals in administrative or judicial proceedings, and the order of the Court of Justice in Internationaler Hilfsfonds v Commission, cited above, those differences could not mean, by converse implication, that a finding of an instance of maladministration by the Ombudsman constitutes a new factor and that an appellant which has not brought court proceedings against an initial decision may therefore circumvent the relevant time-limits. 162. It should be pointed out that, as the case-law shows, the condition requiring a fact or a factor to be ‘new’ is fulfilled if the fact or factor in question emerged after the adoption of the previous decision which has become definitive. (53) 163. In this case, there is no doubt that that was true of the decision of the Ombudsman adopted on 14 December 2004. 164. I do doubt, however, whether the merits of the finding by the Court of First Instance that that decision was not new can be invalidated by that finding alone. If that were the case, the error committed by the Court of First Instance would constitute a patent distortion of the clear sense of the evidence, as, moreover, the appellant alleges. 165. More correctly – albeit, admittedly, by a stretch of interpretation – the assessment of the Court of First Instance is based on the implicit but necessary inclusion in the term ‘new’ of the criterion requiring that the relevant fact or factor justifying reconsideration by the administration of the previous decision which has become definitive must be ‘substantial’ or ‘sufficiently substantial’, as the case-law of the Court has also established. (54) 166. That criterion thus appears to be met by a fact which is capable of substantially altering the situation on the basis of which the appellant made the initial application that gave rise to the previous decision which has become definitive. (55) It is also correct, in my view, to classify as ‘substantial’ or ‘sufficiently substantial’ a fact capable of substantially altering the conditions under which the previous act whose reconsideration is sought was adopted, such as, in particular, a fact which casts doubt on the merits of the solution adopted by that act. (56) 167. That is precisely the case of a decision of the Ombudsman, such as that of 14 December 2004, which finds an instance of maladministration in the processing of an application requesting access to certain documents on the ground that the administration did not provide valid reasons capable of justifying the refusal to disclose those documents, in disregard of Regulation 1049/2001. 168. Such a situation is, of course, different from that in which the Ombudsman, following a complaint, simply confirms the assessment made by the administration, which was the situation that gave rise to the abovementioned orders of the Court of Justice and the Court of First Instance in Internationaler Hilfsfonds v Commission. 169. Moreover, the classification of a decision of the Ombudsman, such as that adopted on 14 December 2004, as a ‘substantial new fact’ is not, in my opinion, precluded by either Article 2(6) of Decision 94/262 or Article 195 EC, contrary to the finding of the Court of First Instance. 170. On the one hand, recognition of such a classification does not call into question the fact that the lodging of a complaint with the Ombudsman does not have suspensory effect on the time-limits for bringing court proceedings against the initial decision, as provided for by Article 2(6) of Decision 94/262. Those time-limits continue to run against the initial decision, which may even become definitive in relation to the applicant, either where the Ombudsman does not identify any instance of maladministration or where, although an instance of maladministration has been identified, the latter, being merely procedural, does not in particular raise any doubt as to the merits of the solution adopted in the previous act not challenged within the time-limits for bringing court proceedings. 171. The time-limits for bringing court proceedings would not therefore be reopened simply because the matter had been referred to the Ombudsman, but because his decision finding an instance of substantial maladministration in the processing of an application for access to documents constituted a substantial new fact within the meaning of the case-law of the Court. 172. On the other hand, while it is true that Article 195 EC does not impose an obligation on the institutions which have been the subject of a complaint to the Ombudsman to reconsider their position, that assessment does not apply to a situation where, following an inquiry, the Ombudsman identifies an instance of maladministration the substance of which relates specifically to the merits of the solution arrived at by the institution concerned in the act, which has become definitive, whose reconsideration is sought. 173. There would, however, be no point seeking in a legislative text, or even in the EC Treaty, the origin of the obligation to reconsider a Community act which has become definitive following the emergence of a substantial new fact since that obligation is based on a general principle of administrative law, (57) as the Court of First Instance rightly held in the judgment in Inpesca v Commission. 174. In my view, the approach of treating a decision by the Ombudsman such as that adopted in 14 December 2004 as a substantial new fact justifying reconsideration by the administration of a previous decision which has become definitive ensures the effectiveness of a finding of an instance of maladministration by the Ombudsman and at the same time preserves the discretion of the requested institution. On the one hand, contrary to what the Commission maintains in its response to the appeal, an institution will be all the more likely to comply diligently with the requirement of proper administration in the context of access to documents if it is aware of the possibility open to an applicant of requesting the reconsideration of a decision refusing access following a finding by the Ombudsman of an instance of maladministration. On the other hand, it is clear that, despite the obligation to reconsider the merits of the previous decision refusing access, the institution will retain the power not to disclose the requested document on the basis of the exceptions laid down by Article 4 of Regulation No 1049/2001. (58) 175. On those grounds, I consider that the Court of First Instance erred in taking the view that the Ombudsman’s decision of 14 December 2004 could not be classified as a new factor, in the sense of a substantial new fact, such as to justify reconsideration of the decision contained in the letter of 26 July 2002 refusing the appellant access to certain documents relating to Contract LIEN 97‑2011. 176. The Court of First Instance also erred therefore in so far as, in ruling in paragraphs 93 to 100 of the judgment under appeal that the Commission had not reconsidered the appellant’s situation, it by implication but necessarily denied that the Commission had an obligation to reconsider that situation, despite the fact that a substantial new fact had emerged between the adoption of the initial decision and that of the act contested at first instance, that is to say the Ombudsman’s decision of 14 December 2004 finding an instance of maladministration in the processing of access to the documents requested by the appellant. 177. In the light of all the foregoing considerations, I propose that the second ground of appeal should be upheld and the judgment of the Court of First Instance set aside in part in so far as that court upheld the objection of inadmissibility raised by the Commission and found that the action at first instance was directed against an act which merely confirmed the decision contained in the letter of 26 July 2002. 178. However, such partial setting-aside of the judgment of the Court of First Instance will be capable of rendering the action at first instance admissible only if the third ground of appeal were upheld. 179. However, as I have already said earlier, I take the view that the third ground of appeal should be rejected. 180. I therefore propose that the appeal be dismissed. (59) V – Costs 181. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 69(2) of the same rules, applicable to appeal proceedings pursuant to Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for. As the Commission has applied for costs and the appellant should, in my view, be unsuccessful, the latter should be ordered to pay the costs of the appeal. VI – Conclusion 182. In the light of the foregoing considerations, I propose that the Court should decide as follows: (1) dismiss the appeal; (2) order Internationaler Hilfsfonds eV to pay the costs. 1 – Original language: French. 2 – Case T 141/05 Internationaler Hilfsfonds v Commission [2008] ECR II-84. 3 – OJ 2001 L 145, p. 43. 4 – OJ 2001 L 345, p. 94. 5 – OJ 1994 L 113, p. 15. 6 – OJ 2002 L 92, p. 13. 7 – Although, in response to a written question addressed to the applicant pursuant to Article 54a of the Rules of Procedure of the Court of Justice, the applicant was ‘willing’ for the Court to consider the application of 22 December 2004 to be a confirmatory application, that response, apart from the fact that it was not articulated in and was inconsistent with the applicant’s arguments in support of the third ground of appeal, was formulated solely were it ‘to serve the purpose of the administration of justice’ and ‘in the alternative’, although it was not reiterated at the hearing before the Court. In those circumstances, it would appear difficult to accord it any status, even that of an argument in support of this ground of appeal. 8 – It was on that basis that the Court accepted that the Court of First Instance could rule on the merits of a case without even ruling on an objection of inadmissibility in so far as the action was, in any event, held to be unfounded: see Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraph 52, a practice which the Court itself also applies (see Case C‑233/02 France v Commission [2004] ECR I‑2759, paragraph 26). 9 – See in particular Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 10; Case C‑147/96 Netherlands v Commission [2000] ECR I‑4723, paragraph 27; and Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑5829, paragraph 42. 10 – See to that effect Athinaïki Techniki v Commission, paragraphs 42 and 43. 11 – See also recital 13 of Regulation No 1049/2001. 12 – Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 392 to 406, and judgment of 19 September 2008 in Case T‑253/06 P Chassagne v Commission, paragraph 57. 13 – Case C‑443/05 P [2007] ECR I‑7209. 14 – See to that effect Case 19/58 Germany v High Authority [1960] ECR 225, in particular at 233 and 234; Case 108/81 Amylum v Council [1982] ECR 3107, paragraph 28; and Case C‑210/98 P Salzgitter v Commission [2000] ECR I‑5843, paragraphs 56 and 57. 15 – Cited in preceding footnote. 16 – As I stated in my Opinion in Common Market Fertilizers v Commission, unlike Advocate General Jacobs, I do not believe that the requirement that the breach of Community law should be manifest relates to classification as a matter of public policy. It is rather a condition precedent to the existence of an obligation on the Community judicature to raise the issue of its own motion. 17 – See, on that point, Case 280/87 Hecq v Commission [1988] ECR 6433, paragraph 12, in which the Court refused to examine of its own motion the competence of a head of department to adopt management decisions in relation to an official. 18 – Article 14 of the Rules of Procedure of the Commission, which entered into force on 1 January 2001 (OJ 2000 L 308, p. 26), provided that ‘[t]he Commission may, provided the principle of collective responsibility is fully respected, delegate the adoption of management or administrative measures to the Directors-General and Heads of Service, acting on its behalf and subject to such restrictions and conditions as it shall impose’. 19 Orders in Case C‑153/98 P [1999] ECR I‑1441, paragraph 15, and Case C‑154/98 P [1999] ECR I‑1451, paragraph 15. See also to that effect the order of 7 December 2004 in Case C‑521/03 P Internationaler Hilfsfonds v Commission, paragraph 44. 20 – The question whether that information must appear in the grounds of the decision itself or in the act by which the decision is notified is not crucial and, in any event, is not covered by Regulation No 1049/2001. What does matter is that the information on the remedies available should be communicated at the time when access to the documents requested is totally or partially refused. 21 – See, respectively, paragraph 4 (p. 4) of the appellant’s observations on the objection of inadmissibility raised by the Commission before the Court of First Instance and footnote 2 (p. 4) of the response to the appeal before the Court of Justice. 22 – See in particular to that effect Case C‑274/99 P Connolly v Commission [2001] ECR I‑1611, paragraph 121; Case C‑197/99 P Belgium v Commission [2003] ECR I‑8461, paragraph 81; and Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others v Council and Commission [2008] ECR I‑6513, paragraph 91. 23 – It is worth bearing in mind that the Court of Justice has already held that an inadequate statement of reasons can, and indeed must, be raised by the Community judicature of its own motion (see, in particular, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 67, and the case-law cited). 24 – See in this regard Case C‑361/01 P Kik v OHIM [2003] ECR I‑8283, paragraph 101; Case C‑93/02 P Biret International v Council [2003] ECR I‑10497, paragraph 60 and Case C‑94/02 P Biret et Cie v Council [2003] ECR I‑10565, paragraph 63; Case C‑447/02 P KWS Saat v OHIM [2004] ECR I‑10107, paragraphs 46 to 51; and Case C‑497/06 P CAS Succhi di Frutta v Commission [2009] ECR I-0000, paragraphs 57 to 67. See also, with regard to the possibility of a substitution of grounds, the Opinion of Advocate General Léger in Case C‑294/95 P Ojha v Commission [1996] ECR I‑5863, point 179. 25 – See, by analogy, Joined Cases C‑83/01 P, C‑93/01 P and C‑94/01 P Chronopost and Others v Ufex and Others [2003] ECR I‑6993, paragraph 43. 26 – Case 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005, paragraph 10; Case C‑137/92 P Commission v BASF and Others [1994] ECR I‑2555, paragraph 48; Case C‑245/92 P Chemie Linz v Commission [1999] ECR I‑4643, paragraph 93; and Case C‑475/01 Commission v Greece [2004] ECR I‑8923, paragraph 18. 27 – Commission v BASF and Others, paragraph 49, Chemie Linz v Commission, paragraph 94, and Commission v Greece, paragraph 19. 28 – Commission v BASF and Others, paragraph 50, Chemie Linz v Commission, paragraph 95, and Commission v Greece, paragraph 20. 29 – See in this regard Commission v BASF and Others, paragraphs 48 to 53, and Case C‑107/99 Italy v Commission [2002] ECR I‑1091, paragraph 45. 30 – The appellant indicates in that paragraph that it ‘considered that an inquiry by the Ombudsman would produce better and faster results than proceedings before the Court of First Instance in Luxembourg, which experience shows are lengthy’. 31 – For the record, I would point out that, under Article 231 EC, if the action for annulment is well founded, the Court of Justice must declare the act concerned to be void. 32 – With no claim to exhaustiveness, time-limits for bringing proceedings cannot be relied on in Belgian, Danish, Estonian, Finnish, French, German. Greek, Italian, Luxembourg, Netherlands, Polish, Portuguese or Spanish law. 33 – Of course, such a presumption means that there is no requirement on the applicant to demonstrate any excusable error permitting it to derogate from the rules governing time-limits for bringing proceedings. Moreover, that presumption also means that, in principle, a decision adopted in breach of the obligation to indicate the remedies available has not become definitive as against the applicant. In such circumstances, the latter is entitled to challenge either the confirmed decision or the so-called confirmatory decision or both: see Joined Cases 193/87 and 194/87 Maurissen and European Public Service Union v Court of Auditors [1989] ECR 1045, 1075, paragraph 26, and Case C‑135/06 P Weißenfels v Parliament [2007] ECR I‑12041, paragraph 54. 34 – Somewhat like a consumer’s waiver of his right to have the courts disapply an unfair contractual term: see in this regard Case C‑243/08 Pannon GSM [2009] ECR I-0000, paragraph 33. 35 – There seems to be some dispute over whether the appellant was represented by counsel at the time when the decision of 26 July 2002 was notified. While counsel for the appellant implied that that was the case at the hearing before the Court, none of the documents in the case-file supports that suggestion, as the correspondence at that time was addressed directly to the director of the appellant organisation. 36 – See on that point Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21, and the order of 8 December 2005 in Case C‑210/05 P Campailla v Commission, paragraph 28. 37 – See, in particular, Case 26/76 MetroSB-Großmärkte v Commission [1977] ECR 1875, paragraph 4; Joined Cases 166/86 and 220/86 Irish Cement v Commission [1988] ECR 6473, paragraph 16; Case C‑480/93 P Zunis Holding and Others v Commission [1996] ECR I‑1, paragraph 14; and Case C‑123/03 P Commission v Greencore [2004] ECR I‑11647, paragraph 39. 38 – As I have already indicated, in the assessment in the alternative in paragraphs 103 to 110 of the judgment under appeal (challenged under the third ground of appeal examined above), the Court of First Instance accepted that the application made on 22 December 2004 constituted an entirely new application. 39 – See, in particular, Case C-425/07 P AEPI v Commission [2009] ECR I-0000, paragraph 44 and case-law cited. 40 – In that regard, the Court of First Instance, rightly in my view, considers that the question of the admissibility of an action brought against a merely confirmatory act may be raised of its own motion by the court adjudicating on the substance of the case (see Case T‑86/97 Apostolidis v Court of Justice [1998] ECR-SC I‑A‑167 and II‑521, paragraphs 18 to 25). 41 – While it is understandable that the issue of distortion of the facts by the Court of First Instance cannot be raised by the appeal court of its own motion, since the exceptional nature of an examination of the facts by the latter is intended to protect the persons directly affected by the facts at issue, conversely, review of a distortion of the law would seem to be a natural part of the role of the appeal court and seeks to protect the public interest. 42 – There is no doubt that this question, which falls within the scope of the review of the legal classification of the facts by the Court of First Instance, is a point of law which may therefore, as such, be submitted to the Court of Justice on appeal: see, in that connection, Cases C‑19/93 P Rendoand Others v Commission [1995] ECR I‑3319, paragraph 26; C‑154/99 P Politi v European Training Foundation [2000] ECR I‑5019, paragraph 11; and C‑470/00 P Parliament v Ripa di Meana and Others [2004] ECR I‑4167, paragraph 41. 43 – Case 23/80 Grasselli v Commission [1980] ECR 3709. 44 – Orders in Case C‑512/03 P Internationaler Hilfsfonds v Commission and Campailla v Commission, paragraph 23. 45 – See in that regard Joined Cases 109/63 and 13/64 Muller v Commission [1964] ECR 663, at 674; Case 24/69 Nebe v Commission [1970] ECR 145, paragraph 8; Case 33/72 Gunnella v Commission [1973] ECR 475, paragraphs 10 and 11; and Case C‑417/05 P Commission v Fernández Gómez [2006] ECR I‑8481, paragraph 46. See also the Opinion of Advocate General Reischl in Case 343/82 Michael v Commission [1983] ECR 4023, point 1. 46 – Case 54/77 Herpels v Commission [1978] ECR 585. 47 – Paragraphs 11 to 14. 48 – See Joined Cases 42/59 and 49/59 Snupat v High Authority [1961] ECR 53, at 62; Case 43/64 Müller v Councils of the EEC, EAEC and ECSC [1965] 385, at 397; Case 326/82 Aschermann and Others v Commission [1984] ECR 2253, paragraph 13; Case 127/84 Esly v Commission [1985] ECR 1437, paragraph 10; Case 191/84 Barcella and Others v Commission [1986] ECR 1541, paragraph 13; Case 153/85 Trenti v ESC [1986] ECR 2427, paragraph 11; Case 232/85 Becker v Commission [1986] ECR 3401, paragraph 8; Case 302/85 Pressler-Hoeft v Court of Auditors [1987] ECR 513, paragraph 6; Case 125/87 Brown v Court of Justice [1988] ECR 1619, paragraph 13; Case C‑459/98 P Martínez del Peral Cagigal v Commission [2001] ECR I‑135, paragraph 45; and the order of 26 March 2003 in Case C‑170/01 P Inpesca v Commission, paragraph 72. 49 – See in particular in this regard Case T‑186/98 Inpesca v Commission [2001] ECR II‑557, paragraph 48. 50 – See to that effect Trenti v ESC, paragraphs 13 and 14, and Inpesca v Commission, paragraph 49. 51 – See Muller v Commission, p. 674, and Case 28/72 Tontodonati v Commission [1973] ECR 779, paragraphs 3 to 5. 52 – Order in Case T‑372/02 Internationaler Hilfsfonds v Commission [2003] ECR II‑4389, paragraph 40, and order in Case C‑521/03 P, paragraph 49. 53 – See in particular Nebe v Commission, paragraph 8; Case 127/84 Esly v Commission [1985] ECR 1437, paragraph 11; and Inpesca v Commission, paragraph 50. 54 – For the category of judgments which refer expressly to the ‘substantial new fact’, see Aschermannand Others v Commission, paragraph 13; Trenti v ESC, paragraph 11; Becker v Commission, paragraph 9; and order in Inpesca v Commission, paragraph 72; for the category referring to a ‘sufficiently important/substantial new fact’, see Muller v Commission, at 674, and Esly v Commission, paragraph 12. 55 – See to that effect Becker v Commission, paragraph 11; order in Inpesca v Commission, paragraph 73; and judgment in Inpesca v Commission, paragraph 51. See also Esly v Commission, paragraphs 11 and 12. 56 – See Case T‑94/96 Hagleitner v Commission, [1998] ECR‑SC I‑A‑489 and II‑1467, paragraphs 31 and 32, and Case T‑12/08 P M v EMEA [2009] ECR II‑0000, paragraph 54. 57 – Paragraph 54. 58 – It may also be worth bearing in mind that the Ombudsman’s conclusions are not in themselves binding on the Community judicature, although they may be an indication that the principle of sound administration has been infringed; see Case C‑167/06 P Komninouand Others v Commission, paragraph 44. 59 – In those circumstances, of course, there is no further need for the Court to adjudicate on the appellant’s claim that the decision allegedly contained in the letter of 14 February 2005 should be annulled or, a fortiori, the claim that the Court should give final judgment in the matter. In this regard, even if the Court were to uphold the appeal, it could not grant the latter claim since, as the Commission rightly states in its response, the Court of First Instance has not itself had the opportunity to give final judgment in the matter. The state of the proceedings would not therefore permit the Court of Justice to give final judgment within the meaning of the first paragraph of Article 61 of the Statute of the Court of Justice.