Judgment;Abstract — ECLI:EU:T:2019:330
Date: 2019-05-14
Language of the case: French
Court formation: First Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: France

summary of those pleas in law and the form of order sought by the applicant. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars on which it is based be indicated, at least in summary form, coherently and intelligibly in the application itself (see order of 6 November 2018, Chioreanu v ERCEA, T‑717/17, EU:T:2018:765, paragraph 23 and the case-law cited). 103 In the present case, neither the subject matter of the proceedings, described in paragraph 1 of the application, nor the form of order sought therein refer to an application under Article 277 TFEU. 104 Moreover, the applicants have not put forward any arguments, whether in their written pleadings or at the hearing, to substantiate, where necessary, their general claim, referred to in paragraph 98 above, that Regulation No 1049/2001 should be disapplied for infringement of Article 42 of the Charter of Fundamental Rights. 105 In those circumstances, it cannot be held that a preliminary plea has been properly raised before the Court concerning the assessment of the lawfulness of Regulation No 1049/2001 in the light of Article 42 of the Charter of Fundamental Rights. 106 In the second place, irrespective of any assessment as to the lawfulness of Regulation No 1049/2001, the applicants seek annulment of the contested decision on the ground that, by refusing them access to the document at issue, the Commission infringed Article 42 of the Charter of Fundamental Rights. 107 In that regard, it should be recalled that, in accordance with Article 52(2) of the Charter of Fundamental Rights, rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties. 108 Under Article 15(3) TFEU, the right of access to documents of the institutions is guaranteed, subject to the principles and conditions determined by the European Parliament and the Council of the European Union, by means of regulations, in accordance with the ordinary legislative procedure. 109 Pursuant to that provision, Regulation No 1049/2001, adopted on the basis of Article 255 EC, which preceded Article 15(3) TFEU, laid down the general principles and limits with regard to the right of access to documents held by the Commission (see, to that effect, judgment of 28 March 2017, Deutsche Telekom v Commission, T‑210/15, EU:T:2017:224, paragraph 113). 110 The lawfulness of the contested decision must therefore be assessed by reference to Regulation No 1049/2001. 111 It follows from the response given to the first plea that the Commission could lawfully refuse to grant the applicants access to the document at issue on the basis of the third indent of Article 4(2) of Regulation No 1049/2001, concerning the protection of the purpose of investigations. 112 Since it has been held above that the Commission correctly applied that provision, it must be concluded that, by adopting the contested decision, the Commission did not infringe Article 42 of the Charter of Fundamental Rights. 113 Consequently, the second plea must be rejected as, in respect of the first part, inadmissible and, in respect of the second, unfounded. 3. The third plea, alleging infringement of Article 47 of the Charter of Fundamental Rights 114 The applicants claim that, by refusing to grant access to the document at issue, the Commission infringed Article 47 of the Charter of Fundamental Rights, concerning the right to an effective remedy. 115 The Commission, supported by the French Republic, contests that plea. 116 In the first place, the applicants submit that, as a result of the refusal to disclose the document at issue to them, they are unable to bring an action for annulment before the EU judicature against the decision contained in the document at issue. 117 In that regard, it suffices to note, as the Commission and the French Republic have contended, that the document at issue does not contain a decision which may be the subject of an action for annulment under Article 263 TFEU. 118 According to settled case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position are acts or decisions which may be the subject of an action for annulment (see judgment of 6 December 2007, Commission v Ferriere Nord, C‑516/06 P, EU:C:2007:763, paragraph 27 and the case-law cited). 119 As is apparent from paragraph 16 of the Code of Best Practice, the assessment issued by the Commission at the end of a pre-notification procedure is not an official position of the Commission, but rather a non-binding assessment of the conformity of the draft notification and the prima facie compatibility of the planned project with EU law on State aid. 120 The Commission could not therefore have impeded the applicants’ right to bring an action for annulment before the EU judicature by refusing access to the document at issue. 121 In the second place, the applicants claim that, as a result of the contested decision, they are prevented from acquainting themselves with the compensation protocol, which they need in order to demonstrate, in an action brought before the Conseil d’État (Council of State, France), that the decree repealing the permit to operate the power plant is unlawful on the ground that it does not comply with the EU rules on State aid. 122 In that regard, it should be recalled that the application for access made by the applicants concerned the document at issue, not the draft compensation protocol. Consequently, even if the Commission had granted their application for access, the applicants would not have obtained the document allegedly required for their action. 123 Moreover, as the Commission has observed, the purpose of Regulation No 1049/2001 is to settle questions relating to public access to documents held by the EU institutions, not those relating to the evidence to be produced by the parties in judicial proceedings, whether it be a dispute before the EU judicature or before the national courts. 124 In national proceedings, it is, according to case-law, for the national court before which the action has been brought to decide on the way in which evidence and appropriate documents are to be produced, in accordance with the applicable law, to resolve the dispute (see, to that effect, judgment of 13 September 2013, Netherlands v Commission, T‑380/08, EU:T:2013:480, paragraph 82). 125 Consequently, the third plea must be rejected, and the action must therefore be dismissed in its entirety. Costs 126 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. 127 Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. 128 In accordance with Article 138(1) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. 129 Accordingly, the French Republic must bear its own costs. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Dismisses the action; 2. Orders the Commune de Fessenheim, the communauté de communes Pays Rhin-Brisach, the conseil départemental du Haut-Rhin and the conseil régional Grand Est Alsace Champagne-Ardenne Lorraine to bear their own costs and pay those incurred by the European Commission; 3. Orders the French Republic to bear its own costs. Pelikánová Nihoul Svenningsen Delivered in open court in Luxembourg on 14 May 2019. [Signatures] * Language of the case: French.