ORDER OF THE COURT (Seventh Chamber)
16 June 2020 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Action for failure to act — Article 265 TFEU — Law governing the institutions — Documents available to the public on the internet relating to closed General Court of the European Union and European Union Civil Service Tribunal cases — Request for anonymity ex post — Failure by the Court of Justice of the European Union to reply before the action was brought at first instance — Position adopted in the course of the proceedings — Action which has become devoid of purpose — No need to adjudicate — Appeal manifestly unfounded)
In Case C‑634/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 August 2019,
CJ, represented by V. Kolias, dikigoros,
appellant,
the other party to the proceedings being:
Court of Justice of the European Union,
defendant at first instance,
THE COURT (Seventh Chamber),
composed of P.G. Xuereb, President of the Chamber, T. von Danwitz and A. Kumin (Rapporteur), Judges,
Advocate General: G. Hogan,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By his appeal, CJ seeks to have set aside the order of the General Court of the European Union of 27 June 2019, CJ v Court of Justice of the European Union (T‑1/19, not published, EU:T:2019:465; ‘the order under appeal’), by which the General Court held that there was no longer any need to adjudicate on his action seeking a declaration that the Court of Justice of the European Union had failed to act as a result of its allegedly unlawful failure to grant him anonymity, ex post, as regards publicly available documents relating to closed General Court and Civil Service Tribunal cases (‘the cases in question’) or, in the alternative, to ensure that versions bearing his name (‘nominal versions’) are not accessible to internet search engine providers.
Legal context
Regulation (EC) No 45/2001
2        Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1), which was in force until 10 December 2018, provided as follows in Article 5 thereof, headed ‘Lawfulness of processing’:
‘Personal data may be processed only if:
(a)      processing is necessary for the performance of a task carried out in the public interest on the basis of the Treaties establishing the European [Union] or other legal instruments adopted on the basis thereof or in the legitimate exercise of official authority vested in the [European Union] institution or body or in a third party to whom the data are disclosed …
…’
3        Article 18 of that regulation, headed ‘The data subject’s right to object’, stated:
‘The data subject shall have the right:
(a)      to object at any time, on compelling legitimate grounds relating to his or her particular situation, to the processing of data relating to him or her, except in the cases covered by Article 5(b), (c) and (d). Where there is a justified objection, the processing in question may no longer involve those data;
…’
Regulation (EU) 2016/679
4        Article 21 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1), headed ‘Right to object’, provides, in paragraph 1 thereof:
‘The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.’
Background to the dispute, procedure before the General Court and the order under appeal
5        By application lodged at the General Court Registry on 7 January 2019, the appellant brought an action under Article 265 TFEU seeking a declaration that the Court of Justice of the European Union had unlawfully failed to grant him anonymity, ex post, as regards publicly available documents relating to the cases in question, or, in the alternative, to ensure that nominal versions are not accessible to internet search engine providers.
6        In order to establish that failure, the appellant claimed, before the General Court, first, that by email of 6 September 2018, he had formally asked the Court of Justice of the European Union to grant him anonymity, ex post, as regards the cases in question or, in the alternative, to ensure that nominal versions are not accessible to internet search engine providers and, second, that by 6 November 2018 that institution had not yet defined its position on that request.
7        On 6 May 2019, in reply to a measure of organisation of procedure, the appellant informed the General Court that, four days after bringing the action, namely on 11 January 2019, the Court of Justice of the European Union had responded by email to his request made in the email of 6 September 2018 (‘the email of 11 January 2019’). The appellant provided the General Court with a copy of the email of 11 January 2019.
8        On a proposal from the Judge-Rapporteur, the General Court asked the parties whether, in the light of the response given by the Court of Justice of the European Union in the email of 11 January 2019, the action before it still had a purpose under Article 131 of its Rules of Procedure.
9        On 20 May 2019, the appellant replied to the General Court stating that nothing prevented it from examining his action, in which he contested the lawfulness of the ‘refusal’, which was implicit as of 6 November 2018, to comply with his request submitted on 6 September 2018, which, he considered, remained an unresolved issue.
10      On 27 May 2019, the Court of Justice of the European Union claimed that the email of 11 January 2019 had put an end to the failure to act alleged by the appellant, and as a result it was no longer necessary to adjudicate on the action before the General Court.
11      By the order under appeal, the General Court declared that there was no need to give a ruling on that action and ordered the Court of Justice of the European Union to pay the costs.
12      In that regard, the General Court noted, in paragraph 11 of the order under appeal, that in the event that the act whose absence constitutes the subject matter of the proceedings was adopted after the action was brought but before judgment by the Court or General Court, a declaration by the EU court to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 266 TFEU, which provides that the EU institution whose act has been declared void or whose failure to act has been declared contrary to the Treaties, is required to take the necessary measures to comply with that judgment. The General Court went on to state that it follows that, in such a case, the action has become devoid of purpose, with the result that there is no longer any need to adjudicate on that action.
13      In paragraph 12 of the order under appeal, the General Court stated that, in the email of 6 September 2018, which was presented in the application at first instance as a ‘request to act’ within the meaning of Article 265 TFEU, the appellant had asked the Court of Justice of the European Union to grant him, ex post, anonymity in the cases in question or, in the alternative, to ensure that nominal versions are not accessible to internet search engine providers. The General Court stated that, in support of that request, which followed a previous request that the appellant had submitted by email on 6 January 2017 and which had been refused by the Court of Justice of the European Union by email on 20 April 2017 (‘the email of 20 April 2017’), the appellant relied, in particular, on a press release from that institution, dated 28 June 2018, regarding the ‘future anonymisation of the names of natural persons involved in any preliminary ruling procedures brought after 1 July 2018’, and on a new legal basis — Article 8(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), concerning the right to rectification of personal data, which had not been raised in his previous request.
14      In paragraph 13 of the order under appeal, the General Court referred to the words and content of the email of 11 January 2019, from which it was clear that, according to the Court of Justice of the European Union, there was no valid reason to alter the reasons set out in its previous email — the email of 20 April 2017 — according to which the appellant had no absolute right justifying derogation from the general principle that judicial decisions are to be published. Rather, in order to give effect to a right to anonymity, that principle must be weighed against the various reasons justifying anonymity relied on by the appellant. The General Court noted that the Court of Justice of the European Union had come to the conclusion that the points of law and of fact relied on by the appellant in his new request could not be regarded as new factors in that regard.
15      As a result, the General Court held, in paragraph 14 of the order under appeal, that, in the email of 11 January 2019, the Court of Justice of the European Union had defined its position on the appellant’s request, with the result that the action before it had become devoid of purpose. Moreover, the General Court stated that the fact that the appellant was not satisfied by the position adopted was irrelevant, since Article 265 TFEU refers to failure to take a decision or to define a position, not the adoption of a measure different from that desired or considered necessary by the applicant.
The form of order sought by the appellant
16      By his appeal, the appellant claims that the Court of Justice should:
–        set aside the order under appeal;
–        in the event the appeal is upheld, grant the form of order he sought at first instance, that is, declare contrary to the Treaties the Court of Justice of the European Union’s failure to anonymise the procedural documents referring to him by name and published on the internet by the General Court and the Civil Service Tribunal or, in the alternative, to ensure that nominal versions are not accessible to internet search engine providers; and
–        order the Court of Justice of the European Union to pay the costs of the present proceedings.
The appeal
17      Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court of Justice may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
18      It is appropriate to apply that provision in the present case.
19      In support of his appeal, the appellant relies on two grounds of appeal, alleging, first, that the General Court made an error in law by considering that the email of 11 January 2019 ‘defined a position’ within the meaning of Article 265 TFEU, and, second, that the General Court failed to provide a sufficient statement of reasons for the order under appeal and infringed his right to an effective remedy.
The first ground of appeal
The appellant’s arguments
20      By the first ground of appeal, the appellant claims that the conclusion reached by the General Court in paragraphs 14 and 15 of the order under appeal, namely that the action he had brought for failure to act had become devoid of purpose, with the result that there was no longer any need to adjudicate on that action, was based on two incorrect premisses.
21      In the first place, the appellant claims that paragraphs 12 and 13 of the order under appeal are based on the premiss that his emails of 6 January 2017 and of 6 September 2018 asking the Court of Justice of the European Union to act had the same legal basis, namely Article 8 of the Charter, which is incorrect.
22      The appellant claims, in this regard, that, while the legal basis of his first request, dated 6 January 2017, was the right to object under Article 21(1) of Regulation 2016/679 and, more generally, the right of every individual to the protection of personal data concerning them, enshrined in Article 8 of the Charter, his second request, dated 6 September 2018, was based on four legal bases, namely (i) the right to object provided for in Article 21(1) of Regulation 2016/679, or its equivalent provided for in Article 18(a) of Regulation No 45/2001, (ii) the principle of equal treatment, enshrined in Article 20 of the Charter, (iii) Article 8(2) of the Charter, which provides that personal data should be processed on a legitimate basis laid down by law, the meaning of which was set out in Article 5 of Regulation No 45/2001, which was adopted on the basis of Article 16(2) TFEU, and (iv) the right to an effective remedy, enshrined in Article 47 of the Charter.
23      However, in the order under appeal, the General Court did not take into consideration three of the four legal bases mentioned above (‘the three additional legal bases’), on which the appellant relied in both his email of 6 September 2018 and in his application at first instance. Accordingly, the appellant takes the view that the conclusions reached by the General Court in the order under appeal are substantially incorrect and vitiated by a distortion of the evidence.
24      The appellant also claims, in the alternative, that those conclusions are vitiated by an error in the classification of the facts and, in the further alternative, that they are vitiated by an inadequate statement of reasons.
25      In the second place, the appellant claims that the fact that the premiss on which paragraphs 12 and 13 of the order under appeal are based is incorrect means that the premiss underlying the first sentence of paragraph 14 of that order, according to which the Court of Justice of the European Union had, in its email of 11 January 2019, defined its position on the request, is also incorrect.
26      In that regard, the appellant claims that a position is defined for the purposes of the second sentence of the second paragraph of Article 265 TFEU only in so far as the EU institution to which the request is made has examined all the important points of law and fact in response to the request to act submitted to it. Therefore, since the Court of Justice of the European Union did not examine the email of 6 September 2018 as regards the three additional legal bases, the email of 11 January 2019 cannot be considered to be defining a position within the meaning of that provision. Moreover, according to the appellant, even if the Court of Justice of the European Union had examined the email of 6 September 2018 as regards the points of law and fact relied on in his request set out in that email and the application at first instance, the email of 11 January 2019 cannot be considered to define a position, since it merely confirms the position defined by that EU institution in its previous email, the email of 20 April 2017.
Findings of the Court
27      It is necessary to note, as a preliminary point, that the legal remedy provided for in Article 265 TFEU is based on the premiss that unlawful inaction on the part of an institution makes it possible to bring an action before the EU courts seeking a declaration that the failure to act is contrary to the FEU Treaty (see, to that effect, judgment of 19 November 2013, Commission v Council, C‑196/12, EU:C:2013:753, paragraph 22 and the case-law cited). Under Article 266 TFEU, such a declaration has the effect that that institution is required to take the necessary measures to comply with the judgment of the EU court, without prejudice to any actions to establish non-contractual liability to which that declaration may give rise. However, where the act whose absence constitutes the subject matter of the proceedings was adopted after the action was brought under Article 265 TFEU but before judgment, a declaration by the EU court to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 266 TFEU (see, to that effect, order of 13 December 2000, Sodima v Commission, C‑44/00 P, EU:C:2000:686, paragraph 83).
28      It follows that, in such a case, as in cases where the institution has responded, after being called upon to act, within the period of two months prescribed by that provision, the subject matter of the action before the EU court has ceased to exist, with the result that there is no longer any need to adjudicate on that action. The fact that the position adopted by the EU institution has not satisfied the applicant is of no relevance in this respect since Article 265 TFEU refers to failure to act in the sense of failure to take a decision or to define a position, not the adoption of a measure different from that desired or considered necessary by the persons concerned (see, to that effect, order of 13 December 2000, Sodima v Commission, C‑44/00 P, EU:C:2000:686, paragraph 83).
29      In addition, it must be noted that the classification for legal purposes of an act or a measure, such as a letter, by the General Court is a question of law which may be raised in an appeal. Therefore, the question of whether a letter sent by an EU institution in response to a request to act does or does not bring an end to the failure to act alleged against that institution is a question of law which is capable of being examined on appeal (judgment of 23 November 2017, Bionorica and Diapharm v Commission, C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraph 55 and the case-law cited).
30      In the present case, it must be noted that, in paragraph 13 of the order under appeal, the General Court, first, referred to the terms and content of the email of 11 January 2019, from which it is clear that, according to the Court of Justice of the European Union, there was no valid reason to alter the reasons set out in its previous email, namely that of 20 April 2017, from which it was apparent that the appellant had no absolute right justifying derogation from the general principle that judicial decisions are to be published. Rather, in order to give effect to a right to anonymity, that principle must be weighed against the various reasons justifying anonymity relied on by the applicant. The General Court, second, referred to the conclusion reached by the Court of Justice of the European Union in the email of 11 January 2019, after examining the points of law and fact put forward by the appellant in his request of 6 September 2018, that those various points and facts could not be regarded as new factors.
31      In doing this the Court of Justice of the European Union confirmed its response set out in the email of 20 April 2017, by which it refused the appellant’s request of 6 January 2017. Therefore, that institution clearly and definitively adopted its position on the appellant’s new request of 6 September 2018, by informing the appellant that it did not intend to grant his new request. It follows that the email of 11 January 2019 defines the position of that institution, within the meaning of the second paragraph of Article 265 TFEU as regards the request made by the appellant on 6 September 2018.
32      The finding that the Court of Justice of the European Union’s response, set out in the email of 11 January 2019, constituted a definition of its position within the meaning of the second paragraph of Article 265 TFEU, cannot be called into question on the ground, relied on by the appellant, that, since the legal bases of his requests of 6 January 2017 and 6 September 2018 were not the same, the Court of Justice of the European Union overlooked, in its email of 11 January 2019, the three additional legal bases.
33      In that regard, it must be noted that, indeed, in that email, the Court of Justice of the European Union neither expressly mentioned Articles 20 and 47 of the Charter nor considered that Article 8(2) of the Charter constituted a new point of law. However, the wording of that email, from which it emerges that ‘based on a mere verification of [CJ]’s request of [6] September 2018, no elements of fact or of law that could be treated as new and substantial and would justify carrying [out] a reassessment of [the appellant]’s situation [were] identified’, leaves no doubt as to how the Court of Justice of the European Union treated the appellant’s request of 6 September 2018.
34      Thus, the General Court was fully entitled to find, in paragraph 14 of the order under appeal, that, in the email of 11 January 2019, the Court of Justice of the European Union ‘defined its position’, for the purposes of the second paragraph of Article 265 TFEU, on the appellant’s request of 6 September 2018.
35      Though, by his arguments, the appellant seeks to criticise the email of 11 January 2019 inasmuch as it contains inadequate reasoning in relation to the three additional legal bases he relied on in his request of 6 September 2018, such a complaint is, in the light of the case-law cited in paragraphs 27 and 28 above, irrelevant as regards whether or not the Court of Justice of the European Union ‘defined a position’ within the meaning of Article 265 TFEU. Indeed, such a complaint, directed against an act of an EU institution rather than its failure to act, may only usefully be raised in the context of an action for annulment brought against such act under Article 263 TFEU.
36      Moreover, the appellant cannot claim that, in so far as the email of 11 January 2019 is a confirmatory act of a previous act by which the Court of Justice of the European Union took a position on his earlier request, dated 6 January 2017, that email is not an act open to challenge before the EU courts and, accordingly, it also cannot be considered to be defining a position within the meaning of Article 265 TFEU. It must be borne in mind that the issue of the conditions of admissibility of an action for failure to act and, by extension, the conditions in which it should be found that the action has become devoid of purpose, with the result that there is no longer any need to adjudicate on that action, is distinct from the issue of whether the act, adopted by the EU institution to which the request was made and which brings its failure to act to an end, may be the subject of an action for annulment (see, to that effect, order of 8 February 2018, CBA Spielapparate- und Restaurantbetrieb v Commission, C‑508/17 P, not published, EU:C:2018:72, paragraph 19).
37      In the light of the foregoing considerations, the first ground of appeal must be rejected as manifestly unfounded.
The second ground of appeal
The appellant’s arguments
38      By the second ground of appeal, the appellant claims, in essence, that, even if it may be considered that the Court of Justice of the European Union defined its position, within the meaning of the second paragraph of Article 265 TFEU, in the email of 11 January 2019, the General Court should in any event be required to adjudicate on the action before it in order to address an infringement, by the EU institution concerned, of the right to sound administration, enshrined in Article 41(1) of the Charter, in conjunction with Article 47 thereof.
39      According to the appellant, the Court of Justice of the European Union infringed that right in its handling of his request of 6 September 2018, as a result of its failure to comply with the European Code of Good Administrative Behaviour, in particular Article 17 of that code, headed ‘Reasonable time limit for taking decisions’, and Article 19 of that code, headed ‘Indication of appeal possibilities’, as well as the principle of equal treatment, which requires an EU institution against which an action is brought to assert its arguments in the procedure regarding the examination of that action and not outside of it. The appellant criticises the General Court for failing to adjudicate, in the order under appeal, on the pleas he had raised, notwithstanding the procedure he had chosen, in breach of the obligation to state sufficient reasons referred to in the first sentence of Article 36 of the Statute of the Court of Justice of the European Union and of the right to an effective remedy, enshrined in Article 47 of the Charter.
Findings of the Court
40      By the second ground of appeal, the appellant complains, in essence, that the General Court failed to take account of the new pleas he raised in the course of the proceedings before it, which were directed, first, against the act adopted by the Court of Justice of the European Union in the email of 11 January 2019 and, second, against the alleged irregularities committed by that institution in the handling of his request.
41      In that regard, it is sufficient to note that, in the light of the case-law cited in paragraphs 27 and 28 above, the examination of those pleas would in any event have been irrelevant for the purposes of establishing whether the Court of Justice of the European Union had defined a position, within the meaning of Article 265 TFEU. Those pleas may be taken into consideration by the EU courts only in the context of an action for annulment brought under Article 263 TFEU against the act adopted by that institution which put an end to its failure to act.
42      It follows that in any event the General Court was entitled, without infringing the obligation to state sufficient reasons or the right to an effective remedy, not to examine those pleas in the context of the action for failure to act before it.
43      In the light of the foregoing, the second ground of appeal must be rejected.
44      Having regard to all the foregoing considerations, the appeal must be dismissed as manifestly unfounded.
Costs
45      Under Article 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those Rules of Procedure, a decision as to costs is to be given in the order which closes the proceedings.
46      Here, since the present order was adopted before the appeal was served on the defendant at first instance and therefore before the latter could have incurred costs, it must be held that the appellant is to bear his own costs.
On those grounds, the Court (Seventh Chamber) hereby orders:
1.      The appeal is dismissed as manifestly unfounded.
2.      CJ shall bear his own costs.
Luxembourg, 16 June 2020.
A. Calot Escobar
P. G. Xuereb
Registrar
President of the Seventh Chamber
*      Language of the case: English.