Judgment — ECLI:EU:T:2018:429
Date: 2018-07-11
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded
Origin: United Kingdom

summary of it are sufficiently clearly stated in the application. Nor, therefore, is an applicant obliged expressly to state on which particular rule of law his ground of objection is based, provided that his line of argument is sufficiently clear for the opposing party and the EU Courts to be able to identify the rule without difficulty (see judgment of 28 May 2013, Trabelsi and Others v Council, T‑187/11, EU:T:2013:273, paragraph 63 and the case-law cited). 65 Consequently, and despite the incorrect reference to the third indent of Article 4(1)(a) of Regulation No 1049/2001, the argument referred to in paragraph 59 above can be understood as meaning that the applicant also sought to claim that, in the light of the indefinite effect of the reasons stated by the Commission, the contested decision infringed the first sentence of Article 4(7) of Regulation No 1049/2001. 66 In accordance with the first sentence of Article 4(7) of Regulation No 1049/2001, the exception provided for in the third indent of Article 4(1)(a) of that regulation is to apply only for the period during which protection is justified on the basis of the content of the requested documents and for a maximum period of 30 years. 67 However, it is not apparent from the documents before the Court that the Commission intended to rely on that exception beyond the conclusion of the trade agreements under negotiation or, in any event, as it states, moreover, in paragraph 33 of the Defence, after such time as the Court of Justice of the European Union may give a ruling on these issues. Therefore, the Commission placed a time limit on the application of that exception. In addition, a person may make a fresh application for access relating to documents to which he has previously been denied access. Such an application requires the institution concerned to examine whether the earlier refusal of access remains justified in the light of a change in the legal or factual situation which has taken place in the meantime (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 57, and order of 8 October 2012, ClientEarth v Council, T‑62/12, not published, EU:T:2012:525, paragraph 27). It is therefore misconceived to refer to an indefinite application, on the part of the Commission, of Article 4 of Regulation No 1049/2001. 68 Fifth, the applicant disputes the assertion in paragraph 33 of the Defence. The applicant submits that to make the disclosure of the requested documents dependent on the decision of the Court of Justice of the European Union on the international agreement concerned would increase disproportionately the scope of the exception relating to the protection of the public interest as regards international relations, and in fact introduce a new exception. According to the applicant, it is unacceptable that acts of the institutions cannot be considered be to of a legal nature until the Court of Justice has delivered a final judgment on a legal question. 69 The applicant, in that regard, misconstrues the Commission’s argument. Although it is true that in paragraph 33 of the Defence the Commission states that the international relations exception is ‘invoked [...] as long as the position of the Court of Justice [of the European Union] is not known’, the Commission does not intend to make this a condition for the applicability of the third indent of Article 4(1)(a) of Regulation No 1049/2001. On the contrary, the Commission refers to that event since it is capable, in the view of the Commission, of putting an end to the application of the exception. The applicant once again confuses the application ratione temporis of the exception at issue stemming from the first sentence of Article 4(7) of Regulation No 1049/2001 with the conditions for applicability of that exception, as defined in the third indent of Article 4(1)(a) of Regulation No 1049/2001. For the reasons already stated in paragraph 67 above, the applicant’s argument must be rejected. 70 Sixth, the applicant argues that the protection of the legal service’s capacity for internal legal discussion, put forward by the Commission in paragraph 25 of the Defence, is irrelevant to the protection of the public interest as regards international relations, since that exception does not cover that capacity for internal legal discussion. 71 The applicant’s reading of paragraph 25 of the Defence is incorrect. Although the Commission refers to the legal service’s ‘internal space to think’, it does so not in order to claim protection of that space in the context of international relations, but to highlight the fact that the information contained in the requested documents is not public information. 72 Seventh, the applicant argues that the application of Regulation No 1049/2001 cannot be made conditional on the Commission’s trade partners having equal transparency obligations. 73 In the present case, the documents requested are, as is apparent from paragraph 46 above, the material on the basis of which the Commission determines its position in the ongoing negotiations on ISDS and ICS. 74 The Court has held that in the context of international negotiations, the positions taken by the European Union are, by definition, subject to change depending on the course of those negotiations, and on concessions and compromises made in that context by the various stakeholders. The formulation of negotiating positions may involve a number of tactical considerations on the part of the negotiators, including the European Union itself. In that context, it is possible that the disclosure by the European Union, to the public, of its own negotiating positions, even though the negotiating positions of the other parties remain secret, could, in practice, have a negative effect on the negotiating position of the European Union (judgment of 19 March 2013, In 't Veld v Commission, T‑301/10, EU:T:2013:135, paragraph 125). 75 It follows from all the foregoing considerations that the applicant has failed, on the basis of the arguments it puts forward in support of its first plea, to call into question the Commission’s assessment that the disclosure of the requested documents would undermine the protection of the public interest as regards international relations. 76 Consequently, the present plea in law must be rejected in its entirety. 77 As is apparent from the contested decision, the Commission relied at the same time on the exceptions based on the protection of the public interest as regards international relations, the protection of legal advice and the protection of the decision-making process. 78 There is no need to examine the merits of the second, third and fourth pleas in law, since, in order for the contested decision to be well founded in law, it is sufficient if one of the exceptions put forward by the Commission in order to refuse access to the requested documents was justified (see, to that effect, judgment of 7 October 2015, Jurašinović v Council, T‑658/14, not published, EU:T:2015:766, paragraph 38). Fifth plea in law: infringement of Article 4(6) of Regulation No 1049/2001 79 The applicant maintains that the Commission misapplied Article 4(6) of Regulation No 1049/2001 in that it has not, or at least not to the required legal standard, examined the documents requested or granted wider access to them. 80 The Commission contends that the applicant’s submissions must be rejected. 81 In accordance with Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released. 82 According to settled case-law, examination of partial access to a document of the European Union institutions must be carried out in the light of the principle of proportionality (judgments of 6 December 2001, Council v Hautala, C‑353/99 P, EU:C:2001:661, paragraphs 27 and 28, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 83). 83 It is clear from the very wording of Article 4(6) of Regulation No 1049/2001 that an institution is required to consider whether it is appropriate to grant partial access to requested documents and to confine any refusal solely to information covered by the relevant exceptions. The institution must grant such partial access if the aim pursued by that institution, in refusing access to a document, could be achieved were the institution merely to redact the passages which might undermine the public interest to be protected (see, to that effect, judgment of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 84 and the case-law cited). 84 In the present case, the Commission granted partial access to the documents referred to in paragraph 4 above. It refused access to the entire document referred to in paragraph 5 above. 85 It is therefore clear that, in the contested decision, and as it indicated in that decision, the Commission examined the possibility of granting the applicant partial access to the requested documents. 86 Nevertheless, it is necessary to consider whether the refusal to grant full access to the document referred to in paragraph 5 above and the partial refusal of access to other requested documents are justified in the light of the principle of proportionality. 87 In that regard, with respect to the exception set out in the third indent of Article 4(1)(a) of Regulation No 1049/2001, it should be borne in mind, as is apparent from paragraph 23 above, that the Commission has a wide discretion when assessing whether the disclosure of a document could undermine the public interest as regards international relations, taking into account the sensitive and fundamental nature of the protected interest. 88 It is not clear from the documents produced by the Commission before the Court (see paragraph 14 above) that it would have been possible to give wider access to the requested documents without that approach involving disclosure of the content of the parts of the documents in respect of which refusal of access was justified and, inter alia, the strategic objectives pursued by the European Union in the negotiation. 89 Moreover, the Courts of the European Union have previously held that, in such a case, the defendant institution, in this case the Commission, was not required to identify, in the statement of reasons for the contested act, the sensitive content of the documents at issue that cannot be revealed by disclosure, where such a step would entail revealing information the protection of which was covered by the exception relied on, relating to the protection of the public interest as regards international relations (see, to that effect, judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 82, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 106). 90 It follows that the fifth plea in law must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 91 Under Article 134(1) 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. 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. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders ClientEarth to bear its own costs and to pay those incurred by the European Commission. Collins Barents Passer Delivered in open court in Luxembourg on 11 July 2018. E. Coulon A. M. Collins RegistrarPresident * Language of the case: English.