Judgment — ECLI:EU:T:2013:308
Date: 2013-06-07
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded
Origin: Netherlands

summary of the various provisions of the rules applicable, the relevant case-law and the practices followed by the directorate concerned when dealing with requests for access. 76 At the hearing, the Commission explained that the document entitled ‘Vademecum on access to documents’ was a purely internal document which, at the material time, did not even appear on its website. The applicant, which stated that it had obtained the document in question following a request for access based on Regulation No 1049/2001, has neither alleged nor, still less, established that the document in question had been the subject of any form of publication intended for third parties. 77 It appears, in those circumstances, that the DG Trade document entitled ‘Vademecum on access to documents’ was in no way intended to produce external effects and was to be regarded as a mere internal service memorandum, having effects internal to the administration only, more specifically within the directorate mentioned above, and which did not create any right for the benefit of third parties. 78 It follows from all of the foregoing that the ground for annulment alleging misapplication of the third indent of Article 4(1)(a) of Regulation No 1049/2001 must be rejected. The plea in law alleging discriminatory treatment of the applicant 79 The applicant claims that there is ‘no relevant difference’ between it and the industrial sectors consulted by the Commission and that, accordingly, by disclosing material only to the latter, the Commission acted in a discriminatory manner. The applicant argues that this is particularly the case as the Commission is unable to show why the applicant is less reliable or trustworthy than the trade organisations which received the documents. 80 According to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 95, and judgment in Case C‑250/11 Lietuvos geležinkeliai [2012] ECR, paragraph 44). 81 As stated in paragraphs 35 and 37 above, the documents requested by the applicant were provided to trade associations and companies participating as experts in the work of the advisory committee and of its working groups on access to markets of a third State and for the sole purpose of enabling all of the participants to fulfil their roles as advisers to the Commission. It is common ground that the documents in question were not provided on the basis of Regulation No 1049/2001. 82 Suffice it to state that the applicant objectively lacks the abovementioned status, whatever the alleged importance of its role in international negotiations or its reliability as an organisation entered in the Commission’s interest group register. 83 That objective difference in the respective situations explains and justifies the difference in treatment in relation to access to the documents at issue; accordingly, no infringement of the principle of equal treatment to the detriment of the applicant can be imputed to the Commission. 84 It follows that the ground for annulment referred to in paragraph 79 above must be rejected. 85 In so far as the applicant also intended to plead the existence of a particular interest in obtaining the documents requested, such an interest cannot be taken into account when the mandatory exceptions provided for by Article 4(1)(a) of Regulation No 1049/2001 are applied (Sison v Council, paragraph 52 above, paragraph 52, upheld by the Court of Justice in Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 47), as the Commission pointed out in the contested decision. 86 It follows from all of the foregoing that the action must be dismissed. Costs 87 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. 88 The Federal Republic of Germany shall bear its own costs, in accordance with Article 87(4) of the Rules of Procedure. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders the applicant to bear its own costs and to pay those incurred by the European Commission; 3. Orders the Federal Republic of Germany to bear its own costs. Truchot Martins Ribeiro Popescu Delivered in open court in Luxembourg on 7 June 2013. [Signatures] * Language of the case: English.