Judgment — ECLI:EU:T:2011:6
Date: 2011-01-13
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible;Application for measures of inquiry - unfounded
Origin: Germany

summary form the pleas raised and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. 133 However, the fact that the applicant became aware of a legal matter during the course of the procedure before the General Court does not mean that that element constitutes a matter of law which came to light in the course of the procedure. A further requirement is that the applicant was not in a position to be aware of that matter previously (Case T‑340/04 France Télécom v Commission [2007] ECR II‑573, paragraph 164 and the case-law cited). It must be pointed out in that regard that it is not clear from the file that the applicant was not in a position to be aware of a possible infringement of the application ratione temporis of the exceptions to the right of access at issue. 134 In the light of the foregoing, it must be concluded that the argument concerning Article 4(7) of Regulation No 1049/2001 is inadmissible since it constitutes a new plea which was not put forward in the application. Moreover, it must be pointed out that that argument does not constitute an amplification of the pleas made by the applicant in the application. 135 Contrary to the claims of the applicant and the interveners, Article 4(7) of Regulation No 1049/2001 is not inseparably linked to the provisions of Article 4(1) to (3). It is true that Article 4(7) of Regulation No 1049/2001 must be applied in conjunction with the exceptions to the right of access provided for in Article 4(1) to (3). However, it cannot be concluded therefrom that the fact of arguing that there has been an infringement of part of those provisions is the same as alleging an infringement of all of them. The complaint alleging an infringement of Article 4(7) of Regulation No 1049/2001 is not closely linked to the applicant’s pleas alleging an infringement of Article 4(1) to (3). Although a specific examination of the exceptions provided for in Article 4(1) to (3) of Regulation No 1049/2001 is an essential condition for deciding on the application ratione temporis of the exceptions at issue, Article 4(7) of Regulation No 1049/2001 does not concern the conditions for the application of the exceptions provided for in Article 4(1) to (3), but the limitation in time of their applicability. 136 In any event, it must be pointed out that it is not clear from the file that protection of the public interest at issue was no longer justified at the time that the contested decision was adopted, having regard to the contents of the German Chancellor’s letter. In that regard, it must be found that, in support of their argument concerning an alleged infringement of Article 4(7) of Regulation No 1049/2001, neither the applicant nor the interveners invoke circumstances other than the mere lapse of time, such as, for example, factors capable of calling into question the importance of the economic policy considerations put forward. 137 The letter at issue contains a statement by the German Chancellor concerning the carrying out of an enlargement of the factory belonging to Company D for the purposes of the final assembly of the Airbus A3XX on the Mühlenberger Loch site, an area protected under Directive 92/43. As has been held, economic considerations in regard to the city of Hamburg, Northern Germany and the European aeronautics industry were at the heart of the issues related to the de-classification of the Mühlenberger Loch site. Having regard to the statement contained in the German Chancellor’s letter, which thus concerned a matter of very great importance for the economic policy of the Federal Republic of Germany, the period of about eight years which elapsed between the sending of the German Chancellor’s letter (15 March 2000) and the adoption of the contested decision (19 June 2008) must be regarded as a period during which the protection of the public interest at issue, namely the economic policy of the Federal Republic of Germany, was justified. 138 In the light of the whole of the foregoing, it must be concluded that the Commission correctly refused disclosure of the German Chancellor’s letter following the objection raised by the Federal Republic of Germany pursuant to Article 4(5) of Regulation No 1049/2001 on the basis of the exception regarding the economic policy of a Member State provided for in the fourth indent of Article 4(1)(a) of that regulation. 139 There is thus no longer any need to consider either the complaint alleging an infringement of the third indent of Article 4(1)(a) of Regulation No 1049/2001 concerning the exception to the right of access regarding the protection of the public interest as regards international relations or the second plea, alleging an infringement of the second subparagraph of Article 4(3) of that regulation concerning the exception as regards the protection of the decision-making process. The alleged infringement of Article 4(6) of Regulation No 1049/2001 Arguments of the parties 140 The Republic of Finland contends that the Commission failed in its obligation under Article 4(6) of Regulation No 1049/2001 to assess the possibility of partial access to the document at issue. The Commission should not have referred only to the statement of the Member State concerned refusing access to the document as a whole. 141 In reply to a question put by the Court concerning the admissibility of its argument, the Republic of Finland, supported by the applicant, the Kingdom of Denmark and the Kingdom of Sweden, claims that its argument is admissible inasmuch as Article 4(6) of Regulation No 1049/2001 is inseparably connected with Article 4(1) to (3). 142 The Commission disputes the arguments of the Republic of Finland. Findings of the Court 143 The General Court may at any time, of its own motion, decide whether there exists any absolute bar to proceeding, one of which is the admissibility of an argument put forward by an intervener (see, to that effect, Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1 at 17 and 18). 144 It must be pointed out that the argument concerning an alleged infringement of Article 4(6) of Regulation No 1049/2001 as regards the question of partial access to the document at issue was raised only by the Republic of Finland. No such argument was raised by the applicant. 145 It must be pointed out in that regard that, under the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of Article 53 of that Statute, an application to intervene must be limited to supporting the form of order sought by one of the principal parties. In addition, under Article 116(3) of the Rules of Procedure, the intervener must accept the case as it finds it at the time of its intervention. Although those provisions do not preclude an intervener from using arguments different from those used by the party it is supporting, that is nevertheless on the condition that they do not alter the framework of the dispute and that the intervention is still intended to support the form of order sought by that party (see, to that effect, De Gezamenlijke Steenkolenmijnen in Limburg v High Authority, cited in paragraph 143 above, pp. 17 and 18, and Verein für Konsumenteninformation v Commission, cited in paragraph 80 above, paragraph 52). 146 In the present case, the subject-matter of the dispute as it is constituted between the applicant and the Commission is the annulment of the contested decision. It concerns, first, the consequences of applying Article 4(5) of Regulation No 1049/2001 and, secondly, an alleged infringement of the exceptions to the right of access provided for in the third and fourth indent of Article 4(1)(a) and the second subparagraph of Article 4(3) of that regulation. Neither the application nor the defence contain arguments concerning a possible infringement of Article 4(6) of the said regulation. In addition, the applicant expressly indicated in its application that it did not challenge the contested decision in regard to partial access. The alleged infringement of Article 4(6) of Regulation No 1049/2001 was raised for the first time in the Republic of Finland’s statement in intervention. 147 Contrary to what the Republic of Finland claims, Article 4(6) of Regulation No 1049/2001 is not inseparably connected with Article 4(1) to (3). Although the specific examination of the exceptions referred to in Article 4(1) to (3) of Regulation No 1049/2001 is indeed an essential condition for deciding whether to grant partial access to the document at issue (see, to that effect, Verein für Konsumenteninformation v Commission, cited in paragraph 80 above, paragraph 73; Franchet and Byk v Commission, cited in paragraph 122 above, paragraph 117; and Joined Cases T‑355/04 and T‑446/04 Co-Frutta v Commission [2010] ECR II‑0000, paragraph 124), examination of such a possibility does not concern the conditions for the application of the exceptions at issue provided for in Article 4(1) to (3). The requirement of such an examination flows from the principle of proportionality. In the context of Article 4(6) of Regulation No 1049/2001, it must be considered whether the aim pursued in refusing access to the document at issue may be achieved even if only the passages which might harm the protected public interest are blanked out (see, to that effect, Case C‑353/99 P Council v Hautala [2001] ECR I‑9565, paragraphs 27 to 29, WWF European Policy Programme v Council, cited in paragraph 111 above, paragraph 50). 148 The conditions for the application of Article 4(6) of Regulation No 1049/2001 are thus examined separately, and at a different stage of the analysis, from the conditions for the application of the exceptions provided for in Article 4(1) to (3) (see, to that effect, Joined Cases T‑110/03, T‑150/03 and T‑405/03 Sison v Council, cited in paragraph 111 above, paragraphs 86 to 89, and WWF European Policy Programme v Council, cited in paragraph 111 above, paragraphs 47 to 55). Only a possible infringement of Article 4(6) of Regulation No 1049/2001 could entail the annulment of a decision refusing partial access. 149 It follows that the argument put forward by the Republic of Finland concerning an infringement of Article 4(6) of Regulation No 1049/2001 has no connection to the subject-matter of the dispute as defined by the principal parties and therefore modifies the context of the present dispute. That argument must therefore be rejected as inadmissible. The application for production of the document at issue Arguments of the parties 150 The applicant requests the Court to order the Commission, by way of measures of inquiry in accordance with Article 66(1) of the Rules of Procedure, to produce the German Chancellor’s letter so that the Court can examine its contents and thus determine whether, and if so to what extent, the letter is covered by the exceptions relied upon by the Commission. 151 The Commission and the interveners have not adopted a position on the applicant’s request. Findings of the Court 152 As is apparent from all of the foregoing arguments, the Court is able to rule on the application on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings. 153 The applicant’s application that the Commission be ordered to produce the German Chancellor’s letter must therefore be rejected (see, to that effect, the judgment of 10 September 2008 in Case T‑42/05 Williams v Commission, not published in the ECR, paragraphs 130 and 131). 154 In the light of all the foregoing the application must therefore be dismissed in its entirety. Costs 155 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Furthermore, under Article 87(4), the Member States and institutions which have intervened in the proceedings are to bear their own costs. 156 Since the Commission has applied for costs and the applicant has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission. The Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden must bear their own costs. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders IFAW Internationaler Tierschutz-Fonds gGmbH to bear its own costs and to pay those incurred by the European Commission; 3. Orders the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden to bear their own costs. Martins Ribeiro Wahl Dittrich Delivered in open court in Luxembourg on 13 January 2011. [Signatures] * Language of the case: English.