Judgment — ECLI:EU:T:2014:816
Date: 2014-09-25
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Italy

summary of the pleas in law on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare the defence and the General Court to decide the case. In order to ensure legal certainty and the sound administration of justice, it is necessary for the essential facts and points of law on which the action is based to be apparent from the text of the application itself, even if only stated briefly, provided that the statement is coherent and comprehensible (order in Case T‑85/92 De Hoe v Commission [1993] ECR II‑523, paragraph 20, and order in Case T‑294/04 Internationaler Hilfsfonds v Commission [2005] ECR II‑2719, paragraph 23). 108 It must be observed that, in the present case, other than the abstract statement in the application of a plea alleging infringement of Article 4(6) of Regulation No 1049/2001, the applicants develop no argument in support of that plea. 109 Consequently, the second plea must be dismissed as inadmissible. The third plea, alleging breach of the duty to state reason Arguments of the parties 110 The applicants maintain, in addition to their complaints regarding the lack of a specific, individual examination, addressed in the context of their first plea, that the Commission breached its duty to state reasons under Article 296 TFEU. In particular, they submit that, contrary to what is required by settled case-law, the contested decision does not make it possible to understand or ascertain the reasons specifically justifying the refusal of their request for access. They also allege that the references to case-law made in support of the contested decision were made in an arbitrary and fragmentary manner. 111 Moreover, the applicants take issue with the Commission for having dealt with the requests for access to the documents at issue in a single decision, without drawing any distinction between the contents of the documents. Consequently, they were unable to determine which of the reasons for refusal related to each of the documents to which they had requested access. 112 The Commission contests the applicants’ arguments. Findings of the Court 113 The applicants maintain, in substance, that the Commission failed to fulfil its duty to state reasons under Article 296 TFEU inasmuch as it offered no reasons to explain in what way access to the documents at issue might have undermined the exceptions laid down in Regulation No 1049/2001. 114 According to settled case-law, the reasons for any decision of an institution in respect of the exceptions set out in Article 4 of Regulation No 1049/2001 must be stated (Sweden and Turco v Council, paragraph 48; Case T‑166/05 Borax Europe v Commission [2009], not published in the ECR, paragraph 44; and Case T‑331/11 Besselink v Council [2013], not published in the ECR, paragraph 96). 115 It is for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the document requested does in fact fall within the sphere covered by the exception relied on and, secondly, whether the need for protection relating to that exception is genuine (Joined Cases T‑110/03, T‑150/03 and T‑405/03 Sison v Council [2005] ECR II‑1429, paragraph 61). 116 The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited). 117 In the present case, the Commission stated the following in the contested decision: ‘3. Protection of the purpose of investigations Article 4(2)(a), third indent, of Regulation No 1049/2001 provides that “[t]he institutions shall refuse access to a document where disclosure would undermine the protection of: … the purpose of inspections, investigations and audits”. The documents concerned by your requests are two letters which the Commission addressed to the German authorities in order to request their opinion in the context of EU Pilot case 2070/11/SNCO and the German reply to the request. This EU Pilot case is preliminary to the possible opening of the formal phase of an infringement procedure under Article 258 TFEU. … In the documents concerned by your requests, the explanations given by the Commission and the questions asked as well as the reply provided by the German Government reveal the main issues at stake in ... EU Pilot case 2070/11/SNCO. In these circumstances, early disclosure of the documents you request will certainly adversely affect the dialogue between the German authorities and the Commission which is still ongoing. In order for the Commission to be able to carry out its tasks and to settle this dispute, preferably without having to refer it to the Court of Justice, there has to be a climate of mutual trust between the Commission and the Member State concerned, throughout the different stages of the procedure until the case has been definitively closed. … 4. Partial access [The Commission has] also examined the possibility of granting partial access to the requested documents, in accordance with Article 4(6) of Regulation No 1049/2001. However, partial access is not possible given the fact that the documents concerned are, at this stage of the EU Pilot proceedings, entirely covered by the exception under Article 4(2), third indent, of Regulation No 1049/2001. In particular, no element of the three documents concerned by your requests can be disclosed without revealing at least part of the issues at stake in the aforementioned EU Pilot procedure and, therefore, undermining the climate of mutual trust with the German authorities. 5. Overriding public interest in disclosure ... putting an end to a possible infringement of EU law, such as the one dealt with in the EU Pilot case concerned, is a matter of public interest, in particular if the facts at stake are particularly serious, as you assert. It is precisely for that reason that the Commission is conducting this investigation. However it is the Commission’s experience, as confirmed by the Courts, that the public interest in clarifying the issues at stake and, if applicable, in reaching conformity of that Member State is better served by maintaining the atmosphere of mutual trust between the Commission and the Member State concerned. This is also true in cases where alleged infringements may have very serious effects, including on the health of citizens. Particularly in such serious cases, it is vital to find a rapid, effective solution to the problem, if the Commission assessment concludes to the existence of an infringement. It is [the Commission’s] view that this rapid solution can best be found by maintaining the atmosphere of mutual trust between the Commission and the Member State concerned ...’ 118 It is clear from the foregoing that, in the contested decision, the Commission first of all identified the exception on which it based its refusal to grant the applicants’ request for access, that is to say, the exception relating to the public interest in the pursuit of investigations laid down in the third indent of Article 4(2) of Regulation No 1049/2001. It also stated, in this connection, that early disclosure of the documents at issue could adversely affect the dialogue between it and the German authorities in the EU Pilot procedure, which was still ongoing. Next, it stated that partial access, in accordance with Article 4(6) of the regulation, could not be granted because the documents to which the applicants’ request related could not be disclosed without revealing at least some of the issues involved in EU Pilot procedure 2070/11/SNCO. Lastly, it explained that, in its view, the applicants could not point to an overriding public interest, because a solution to the matters set out in the complaint could best be found by maintaining the atmosphere of mutual trust between it and the Federal Republic of Germany. 119 Consequently, contrary to the applicants’ assertion, in the particular circumstances of the case, the information provided by the Commission in the contested decision made it possible for the applicants to understand and the Court to ascertain, first, whether the documents requested did in fact fall within the sphere covered by the exception relied on and, secondly, whether the need for protection relating to that exception was genuine. 120 That finding cannot be called into question by the other allegations made by the applicants. 121 First of all, the applicants take issue with the Commission for having dealt in the same confirmatory decision with the question of access raised in two separate applications relating to the requests for information which the Commission sent to the German authorities on 10 May and 10 October 2011 respectively. 122 In this connection it must be observed at the outset that the applicants do not explain how the Commission’s having dealt with their requests together resulted in a breach of the duty to state reasons. In any event, it must be held, first, that, as the Commission maintains, there is nothing to prevent that institution from dealing with more than one request for access from the same applicant in a single reply, provided that it addresses all the subjects of the various requests and that its reply is sufficiently clear to enable the applicant to understand to which request for access the various parts of the reply relate. In the present case, the Commission distinguished between the documents at issue in the contested decision and, as is clear from paragraph 119 above, it stated the reasons which led it to refuse access to those documents, in accordance with Regulation No 1049/2001. Secondly, as the Commission maintains, proceeding in that way is all the more appropriate where there is a factual relationship between several requests for access, as there is in the present case. 123 Secondly, the applicants complain that the Commission referred to decisions of the European Union judicature in a fragmentary manner. However, that argument cannot succeed. Suffice it to recall in this connection that the Commission referred to the decisions of the Court of Justice and of the General Court which were capable of supporting its legal assessment regarding the application of a general presumption in order to refuse access to the documents (Petrie and Others v Commission, Commission v Technische Glaswerke Ilmenau, LPN v Commission, cited in paragraph 28 above). It is clear from the contested decision that the decisions cited by the Commission are part of the case-law on access to documents relating to investigations and that it cited them in the context of stating the reasons for which it refused the applicants’ request for access. Moreover, the Commission cited that case-law in a sufficiently precise manner to enable the applicants to identify the judgments in question of the Court of Justice and of the General Court and to dispute their relevance in an action before the European Union judicature, as they have done in the present application for annulment. 124 In light of the foregoing, it must be held that the Commission did not breach its duty to state reasons under Article 296 TFEU. 125 The third plea must therefore be rejected. The fourth plea, alleging infringement of the 20 March 2002 Communication Arguments of the parties 126 The applicants allege that the Commission infringed the rules on handling complaints made by Union citizens set out in the 20 March 2002 Communication. They point out that those rules are intended to protect complainants by ensuring that their complaints are handled in accordance with a procedure that is transparent and objective and complies with EU law. In particular, they complain that the Commission failed to inform them of the correspondence which it had exchanged with the German authorities, and that it failed to observe the time-limit for investigating complaints laid down in the communication. 127 The Commission argues, in substance, that the fourth plea is ineffective in the context of the applicants’ application for annulment. Findings of the Court 128 It is appropriate to recall at the outset that the 20 March 2002 Communication sets out the Commission’s internal rules for handling complaints made by Union citizens. According to case-law, the communication contains internal administrative measures with which the Commission must comply when handling a complaint as regards the complainant (order in Case T‑186/08 LPN v Commission [2009], not published in the ECR, paragraph 55). 129 The present action concerns a request for annulment of the Commission’s decision to refuse a request, made pursuant to Regulation No 1049/2001, for access to two requests for information sent to the Federal Republic of Germany. Consequently, in this case, it is necessary for the Court to rule solely on the lawfulness of the contested decision in the light of that regulation. 130 Moreover, the 20 March 2002 Communication provides no legal basis for assessing the lawfulness of the decision refusing access to the documents at issue. It lays down no rules governing access to documents in the context of infringements procedures or EU Pilot procedures and confers no rights on complainants in that context. On the contrary, it simply states that, in the area of infringement proceedings, access to documents is to be sought in accordance with Regulation No 1049/2001. That being so, the communication can have no effect on the assessment of requests for access to documents made under Regulation No 1049/2001. 131 Consequently, the fourth plea must be dismissed as ineffective. 132 It follows from all the foregoing that the action must be dismissed in its entirety. Costs 133 Under Article 87(3) of the Rules of Procedure, the Court may order the costs to be shared or the parties to bear their own costs if each party succeeds on some and fails on other heads, or where the circumstances are exceptional. 134 In the circumstances of the present case, it is appropriate to decide that each party must bear its own costs. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders each party to bear its own costs. Gratsias Kancheva Wetter Delivered in open court in Luxembourg on 25 September 2014. [Signatures] * Language of the case: German.