61998CC0174_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
1 The appeals under consideration have been lodged by the Kingdom of the Netherlands (in Case C-174/98 P) and by Mr van der Wal (in Case C-189/98 P) against the judgment of the Court of First Instance of 19 March 1998 in Case T-83/96 Van der Wal v Commission (1) (hereinafter `the contested judgment').
In the contested judgment, the Court of First Instance rejected the application brought by Mr van der Wal for the annulment of the Commission decision of 29 March 1996 (hereinafter `the contested decision') which refused the appellant access to letters sent by the Directorate-General for Competition to national courts in the context of Notice 93/C 39/05 on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty. (2)
II - Legal background
2 In the Final Act of the Treaty on European Union signed at Maastricht on 7 February 1992 the Member States incorporated a Declaration (No 17) on the right of access to information. (3)
Following that Declaration, the Commission published Communication 93/C 156/05 which it sent to the Council, the Parliament and the Economic and Social Committee on 5 May 1993, concerning public access to the institutions' documents. (4)
On 2 June 1993 it issued Communication 93/C 166/04 on openness in the Community. (5)
3 In the context of those preliminary steps towards implementation of the principle of transparency, on 6 December 1993 the Commission and the Council approved a code of conduct concerning public access to Council and Commission documents (hereinafter `the Code of Conduct'), (6) which sought to establish the principles governing access to documents held by those institutions.
4 In implementation of that undertaking the Commission adopted, on 8 February 1994, on the basis of Article 162 of the EC Treaty (now Article 218 EC), Decision 94/90/ECSC, EC, Euratom on public access to Commission documents (hereinafter `Decision 94/90'), (7) under Article 1 of which the Code of Conduct was formally adopted.
The text of that Code is set out in an Annex to Decision 94/90.
5 The Code of Conduct as thus adopted by the Commission sets out a general principle in these terms:
`The public will have the widest possible access to documents held by the Commission and the Council'.
6 The Code of Conduct describes the factors which may be invoked by an institution to justify the rejection of a request for access to documents in these terms:
`The institutions will refuse access to any document where disclosure could undermine:
- the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations),
- the protection of the individual and of privacy,
- the protection of commercial and industrial secrecy,
- the protection of the Community's financial interests,
- the protection of confidentiality as requested by the natural or legal persons that supplied the information or as required by the legislation of the Member State that supplied the information.
They may also refuse access in order to protect the institution's interests in the confidentiality of its proceedings'.
7 Moreover, the Commission published Communication 94/C 67/03 on improved access to documents, (8) in which it mentions inter alia that:
`... The Commission may take the view that access to a document should be refused because its disclosure could undermine public and private interests and the good functioning of the institution ... There is nothing automatic about the exemptions, and each request for access to a document will be considered on its own merits ...'.
8 In 1993 the Commission issued Notice 93/C 39/05 (9) on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty.
This Notice mentions inter alia both the scope of the information that national courts may request from the Commission and the limits on the Commission's obligation to reply to such requests. (10)
III - Facts and procedure
9 In the contested judgment, the Court of First Instance accepted the following material facts:
The XXIVth Report on Competition Policy (1994) stated that the Commission had received a number of questions from national courts pursuant to the procedure described in Notice 93/C 39/05. (11)
10 By letter dated 23 January 1996 Mr van der Wal, in his capacity as a lawyer and member of a firm which deals with cases raising questions of competition at Community level, requested copies of some of the Commission's replies to those questions, namely:
(1) The letter dated 2 August 1993 from the Director-General of the Directorate-General for Competition (DG IV) to the Oberlandesgericht (Higher Regional Court) Düsseldorf, concerning the compatibility of a distribution agreement with Commission Regulation (EEC) No 1983/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive distribution agreements; (12)
(2) The letter dated 13 September 1994 from Commissioner van Miert to the Tribunal d'Instance (District Court), St Brieuc, concerning the interpretation of Council Regulation (EEC) No 26 of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products; (13) and
(3) The letter sent by the Commission in early 1995 to the Cour d'Appel (Court of Appeal), Paris, which had asked it for an opinion on contractual provisions concerning sales targets for motor vehicle agents in the light of Article 85(1) of the EC Treaty (now Article 81(1) EC) and Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements. (14)
11 By letter dated 23 February 1996 the Director-General of DG IV refused the applicant's request on the ground that disclosure of the requested letters would be detrimental to `the protection of the public interest (court proceedings)'.
He explained that:
`... When the Commission replies to questions submitted to it by national courts before which an action has been brought for the purposes of resolving a dispute, the Commission intervenes as an "amicus curiae".
It is expected to show a certain reserve not only as regards acceptance of the manner in which the questions are submitted to it but also as regards the use which it makes of the replies to those questions.
I consider that, once the replies have been sent, they form an integral part of the proceedings and are in the hands of the court which raised the question.
The points of both law and fact contained in the replies must ... be regarded, in the context of the pending proceedings, as part of the national court's file.
The Commission has sent the replies to that national court and the decision whether to publish that information and/or make it available to third parties is a matter primarily for the national court to which the reply is sent ...'.
The Director-General also referred to the need to maintain a relationship of trust between the Community executive and the national court authorities in the Member States.
He stated that such considerations, which are valid in all cases, must apply even more forcibly in cases such as this, where no final judgment had yet been given in respect of the matters dealt with in the questions submitted to the Commission.
12 By letter dated 29 February 1996 the applicant sent a confirmatory application to the Secretariat-General of the Commission stating, inter alia, that he did not see how the conduct of the national proceedings could be undermined if information of a non-confidential nature provided by the Commission to the national court in the context of application of Community competition law came to the attention of third parties.
13 By virtue of the contested decision of 29 March 1996, the Secretary-General of the Commission confirmed DG IV's decision `on the ground that disclosure of the replies could undermine the protection of the public interest and, more specifically, the sound administration of justice'. He continued as follows:
`... there is a risk that disclosure of the replies requested, which comprise legal analyses, could undermine the relationship and the necessary cooperation between the Commission and national courts.
A court which has submitted a question to the Commission would obviously not appreciate the reply being disclosed, particularly where the question is relevant to a pending case ...'.
The Secretary-General added that the procedure in the present case differed considerably from that under Article 177 of the EC Treaty (now Article 234 EC) to which the applicant had referred in his confirmatory application.
14 It was in those circumstances that, by application lodged in the Registry of the Court of First Instance on 29 May 1996, Mr van der Wal brought an action for the annulment of the contested decision.
He based his pleas for annulment on the infringement of Decision 94/90 and Article 190 of the EC Treaty (now Article 253 EC).
15 By the contested judgment, the Court of First Instance dismissed Mr van der Wal's action, stating inter alia as follows:
`41 Decision 94/90 is a measure granting citizens a right of access to documents held by the Commission (WWF UK v Commission, cited above, paragraph 55). (15)
It follows from the broad scheme of that decision that it applies generally to requests for access to documents and that any person may request access to any Commission document without needing to justify the request (see, in that respect, Notice 95/C 156/05, cited at paragraph 2 above). (16)
The exceptions to that right must be construed and applied strictly, in order not to defeat the application of the general principle laid down in the decision (WWF UK v Commission, cited above, paragraph 56).
42 Decision 94/90 established two categories of exception. According to the wording of the first category, drafted in mandatory terms, "the institutions will refuse access to any document where disclosure could undermine ... [in particular] the protection of the public interest (... court proceedings)" (see paragraph 8 above).
It follows that the Commission is obliged to refuse access to documents falling under that exception once the relevant circumstances are shown to exist (WWF UK v Commission, cited above, paragraph 58).
43 It follows from the use of the form "could", in the present conditional, that in order to show that disclosure of documents relating to court proceedings could undermine the protection of the public interest, as required by the case-law (see paragraph 42 above), before deciding on an application for access to such documents, the Commission must consider in respect of each document requested whether, in the light of the information available to it, disclosure is in fact likely to undermine one of the facets of public interest protected by the first category of exception.
Where that is the case, the Commission must refuse access to the documents in issue (see paragraph 42 above).
44 It is thus necessary to consider whether, and if so, to what extent the Commission is entitled to rely on the exception based on the protection of the public interest in order to refuse to grant access to documents sent by it to a national court in response to a request from that court in the context of the cooperation based on the Notice, even though the Commission is not a party to the proceedings pending before the national court which gave rise to the request.
45 In that respect, it should be recalled that Article 6 of the European Convention on Human Rights (hereinafter "the ECHR") assures the right of everyone to a fair trial.
In order to guarantee that right, the case must be heard, inter alia, "... by an independent and impartial tribunal ..." (Article 6 of the ECHR).
46 It is settled case-law that fundamental rights form an integral part of the general principles of law whose observance the Community judicature ensures (see, in particular, Opinion 2/94 of the Court of Justice [1996] ECR I-1759, paragraph 33, and Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, paragraph 53). For that purpose, the Court of Justice and the Court of First Instance draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have agreed or to which they have acceded.
In that regard the ECHR has special significance (see, in particular, the judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18). Furthermore, as provided for in Article F(2) of the Treaty on European Union, which entered into force on 1 November 1993, "the Union shall respect fundamental rights as guaranteed by the [ECHR], and as they result from the constitutional traditions common to the Member States, as general principles of Community law".
47 The right of every person to a fair hearing by an independent tribunal means, inter alia, that both national and Community courts must be free to apply their own rules of procedure concerning the powers of the judge, the conduct of the proceedings in general and the confidentiality of the documents on the file in particular.
48 The exception to the general principle of access to Commission documents based on the protection of the public interest when the documents at issue are connected with court proceedings, enshrined in Decision 94/90, is designed to ensure respect for that fundamental right.
The scope of that exception is therefore not restricted solely to the protection of the interests of the parties in the context of specific court proceedings, but encompasses the procedural autonomy of national and Community courts (see paragraph 47 above).
49 Its scope therefore entitles the Commission to rely on that exception even when it is not itself party to the court proceedings which, in the particular case, justify the protection of the public interest.
50 In that respect, a distinction must be drawn between documents drafted by the Commission for the sole purposes of a particular court case, such as the letters in the present case, and other documents which exist independently of such proceedings.
Application of the exception based on the protection of the public interest can be justified only in respect of the first category of documents, because the decision whether or not to grant access to such documents is a matter for the appropriate national court alone, in accordance with the essential rationale of the exception based on the protection of the public interest in the context of court proceedings (see paragraph 48 above).
51 When, in the context of proceedings pending before it, a national court requests certain information from the Commission on the basis of the cooperation provided for by the Notice, the Commission's reply is expressly provided for the purposes of the court proceedings in question.
In such circumstances, the protection of the public interest must be regarded as requiring the Commission to refuse access to that information, and therefore to the documents containing it, because the decision concerning access to such information is a matter to be decided exclusively by the appropriate national court on the basis of its own national procedural law for as long as the court proceedings giving rise to its incorporation in a Commission document are pending.
52 In this case, the applicant requested the production of three letters, all concerning pending court proceedings. The applicant did not claim that those letters merely reproduced information which was otherwise accessible on the basis of Decision 94/90.
In that respect, furthermore, it should be noted that the first letter related to the compatibility of a distribution agreement with Regulation No 1983/83, the second concerned the application of Regulation No 26/62 and the third concerned the interpretation of Regulation No 123/85 (see paragraph 11 above).
Those letters thus concerned points of law raised in the context of specific pending proceedings.
53 In that respect, as the Commission has already pointed out, it is irrelevant whether the three documents in issue contained business secrets, since the Commission's refusal to disclose those replies was justified on the grounds set out above (see paragraphs 45 to 52 above).
...'
IV - Forms of order sought by the parties
16 The contested judgment was notified to the Kingdom of the Netherlands on 24 March 1998 and to Mr van der Wal on 19 March 1998.
The Kingdom of the Netherlands, on the one hand, and Mr van der Wal, on the other hand, each lodged an appeal at the Court Registry on 11 May 1998 (Case C-174/98 P) and 19 May 1998 (Case C-189/98 P) respectively.
17 The Kingdom of the Netherlands requests the Court to set aside the judgment of the Court of First Instance, to annul the Commission's contested decision (or, in the alternative, to refer the case back to the Court of First Instance for further adjudication in the light of the judgment of the Court of Justice) and to order the Commission to pay the costs.
18 Mr van der Wal also requests the Court to declare his appeal well founded, to set aside the contested judgment and, in ruling on the substance of the case, to annul the Commission's contested decision.
In the alternative, he requests that the case be referred back to the Court of First Instance for further adjudication in the light of the Court's judgment.
Lastly, he requests that costs be awarded against the Commission.
19 The Commission (in Cases C-174/98 P and C-189/98 P) asks that the Court dismiss the abovementioned appeals and order the appellants to pay the costs.
V - Grounds of appeal
20 The appeal by the Kingdom of the Netherlands against the contested judgment is based on the following two grounds: first, infringement of Decision 94/90 and, second, infringement of the combined provisions of Articles 33 and 46 of the EC Statute of the Court of Justice concerning the legality and completeness of the grounds for the contested judgment.
In addition to the grounds relied on by the Kingdom of the Netherlands, Mr van der Wal also cites infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (hereinafter `the ECHR') and infringement of the principle of autonomy of the parties and of their rights of defence.
21 All these pleas are concerned essentially with the major premiss underlying the judicial reasoning adopted by the Court of First Instance and, in particular, with the interpretation of the rules of law governing the present dispute.
The pleas in support of the appeals revolve around the interpretation given by the Court of First Instance to Decision 94/90 on public access to Commission documents and, in particular, the interpretation given to the exception to the general principle of free access to those documents, an exception which is based on `the protection of the public interest (court proceedings)'.
On that interpretation hinges both the plea alleging infringement of Article 6 of the ECHR and the plea concerning the grounds of the contested judgment insofar as the interpretation of the exception in question determines the limits of review of the adequacy, specific nature and coherence of the grounds.
The ground of appeal alleging infringement of the principle of autonomy of the parties and the protection of their rights of defence also rests on the interpretation of the exception in question.
More specifically, in that context, the appellants contend that the Court of First Instance, in referring to Article 6 of the ECHR to interpret the scope of the exception in question, went beyond the bounds of the dispute submitted to it and effectively substituted its own grounds for the Commission's contested decision.
22 The grounds of appeal will be examined systematically in the following order: first, the plea alleging infringement of Article 6 of the ECHR (A); second, the plea alleging infringement of Decision 94/90 (B); third, the plea concerning the grounds of the contested judgment (C) and, finally, the plea concerning the autonomy of the parties and their rights of defence (D).
In order to reduce the risk of repetition, resulting from the fact that the joined appeals contain common pleas involving numerous limbs based on complex and frequently repeated assertions and arguments, those assertions and arguments will be grouped together as a single submission with any discrepancies between the two appeals being pointed out.
A - Infringement of the ECHR
(a) Arguments of the parties
23 According to Mr van der Wal, in the contested judgment, the Court of First Instance has adopted a mistaken and almost incomprehensible interpretation of the principles deriving from Article 6 of the ECHR thereby infringing Community law.
24 According to the appellant, in the context of due respect for fundamental rights as correctly defined in paragraph 46 of the contested judgment, the Court of First Instance is bound by the interpretation placed on the field of application, and the scope of the rights protected, by the European Commission of Human Rights and the European Court of Human Rights based in Strasbourg.
In view of this obligation, Mr van der Wal contends that Article 6 of the ECHR and the case-law of the abovementioned bodies do not support the position adopted by the Court of First Instance whereby it derives from that article a principle of procedural autonomy for national courts.
Moreover, he maintains that it is not correct to rely on Article 6 of the ECHR to protect the position of a national court or define its position with respect to other legal bodies where such reliance is unrelated to the individual interests of the parties in question.
In paragraphs 47 and 48 of the contested judgment, the Court of First Instance adopts a line of reasoning contrary to the aims of Article 6 of the ECHR which seek to protect the individual interests of the citizen vis-à-vis the State.
The Court of First Instance seems to consider that Article 6 of the ECHR establishes a right in favour of the court.
Consequently, by adding a new principle to the list of guarantees provided under Article 6 of the ECHR, namely the principle of procedural autonomy for national and Community courts, which has no basis in the case-law of the European Court of Human Rights nor any theoretical basis, the Court of First Instance is infringing Community law.
25 According to the appellant, the reasoning adopted by the Court of First Instance in paragraph 47 of the contested judgment must be considered erroneous even if it means that the Court of First Instance takes the view that the principle of procedural autonomy falls within the scope of the term `independent tribunal' for the purposes of Article 6 of the ECHR (in other words, the court must be able to give judgment freely formulating its own findings as to the facts and legal issues, without being subordinate to the parties in question and without its judgment being subject to review by any other non-independent judicial body). Moreover, the appellant notes that, in referring to the position of the national court vis-à-vis the Community judicial authorities, the Court of First Instance is concerned to establish the independence of the former from the Commission, but the Commission is not a judicial body as defined in Article 6 of the ECHR.
In conclusion, according to the appellant, Article 6 of the ECHR in no way establishes the principle of procedural autonomy for national and Community courts.
26 According to the Commission, the Court of Justice and the Court of First Instance are not formally bound by the case-law of the European Commission of Human Rights and the European Court of Human Rights even though that case-law is of major importance as far as the interpretation of the ECHR is concerned.
The Court of Justice and the Court of First Instance do not apply the ECHR, but rather the general principles of Community law.
The Community is not party to the ECHR and therefore is not bound by the provisions relating to the Strasbourg judicial bodies.
27 The Commission notes that Mr van der Wal complains that the interpretation placed on Article 6 of the ECHR by the above judicial bodies was pushed to the limit by the Court of First Instance.
However, that interpretation does not preclude a greater degree of protection being established in other national legal orders or in the European legal order.
28 According to the Commission, paragraph 47 of the contested judgment is convincing with respect to the principle of procedural autonomy.
Moreover, in that paragraph the Court of First Instance reasons at the level of the general principles of Community law with a view to interpreting Decision 94/90 and there could be no question of incompatibility with the ECHR or any erroneous interpretation thereof.
29 Finally, the Commission notes that the reasoning adopted by the Court of First Instance is not incompatible with the fundamental aim of Article 6 of the ECHR.
In particular, it maintains there is no conflict between a court's independence and the protection of citizens' rights.
The former, which includes the court's procedural autonomy, is intended precisely to guarantee the fundamental rights of the latter.
(b) My opinion
30 The Court has repeatedly held that `... fundamental rights form an integral part of the general principles of Community law the observance of which [the Court] ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories ... . The European Convention on Human Rights has special significance in that respect ... It follows that, as the Court held ... the Community cannot accept measures which are incompatible with observance of the human rights thus recognised and guaranteed (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41)'. (17)
31 As correctly noted therefore in the contested judgment, (18) the rules of the ECHR and the constitutional traditions common to the Member States are a source of inspiration for the general principles of Community law. (19)
Those rules are of particular importance and, within the limits of the above case-law, the Court of Justice, on the one hand, assumes the role of interpreter of the ECHR (20) and, on the other hand, may not give an interpretation of Community law incompatible with the observance of human rights as recognised and safeguarded by the ECHR.
However, since the European Union is not a signatory of the ECHR, while it may be logical and legitimate to refer by way of analogy to the rulings of the European Commission on Human Rights and the European Court of Human Rights, (21) it cannot be accepted that the Court and the Court of First Instance are formally bound by those rulings.
32 On the basis of the above, I consider that the plea alleging infringement of Article 6 of the ECHR, and consequently Community law, should be dismissed as ineffective insofar as it is based on the argument that the contested judgment differs from the interpretation placed on the scope and field of application of Article 6 of the ECHR by the European Commission of Human Rights and the European Court of Human Rights based in Strasbourg.
33 In any case, however, the above plea should be dismissed as unfounded because there is nothing to indicate that the interpretation adopted by the Court of First Instance in its contested judgment is contrary to the right of every person to a fair hearing by an independent tribunal, as recognised and guaranteed by Article 6 of the ECHR. Accordingly, there is no indication that the interpretation in question conflicts with the interpretation given to date by the European Commission on Human Rights and the European Court of Human Rights based in Strasbourg.
34 On the one hand, contrary to the appellant's assertions, the contested judgment does not adopt a reasoning that bestows a right on the court unrelated to the individual interests of the parties.
Protection of the latter constantly underpins the reasoning adopted by the Court of First Instance in paragraphs 47 and 48 of the contested judgment.
In particular, arguing always at the level of general principles of Community law, the Court of First Instance interprets the scope of the right of every person to a fair hearing by an independent tribunal and notes that the scope of that right encompasses the procedural autonomy of national and Community courts.
It therefore rightly notes that the exception to the general principle of access to Commission documents based on the protection of the public interest when the documents at issue are connected with court proceedings is designed to ensure respect for that fundamental right.
It goes on to note that the scope of that exception `is therefore not restricted solely to the protection of the interests of the parties in the context of specific court proceedings, but encompasses the procedural autonomy of national and Community courts', (22) which flows logically from `the right of every person to a fair hearing by an independent tribunal'. (23)
It is clear from the above reasoning that the Court of First Instance, far from ignoring the fact that Article 6 of the ECHR aims to guarantee an individual right, explicitly construes the principle of the procedural autonomy of national and Community courts as an institutional guarantee for the protection of the parties' interests.
35 On the other hand, it should be noted that, contrary to the appellant's assertions, that institutional guarantee is correctly linked to the requirement of an `independent tribunal'.
Admittedly, it would be extremely difficult to imagine a completely `independent' court which was not competent to apply its own rules of procedure (national rules of procedure in the case of national courts) or rule equally freely on procedural matters of a general nature and on the confidentiality of procedural documents in particular.
36 Moreover, that connection between procedural autonomy and judicial independence does not appear to conflict with either the spirit of the ECHR or the views in legal theory or in the case-law adopted to date by the Strasbourg judicial bodies as regards the scope of the term `independent tribunal' as defined in Article 6 of the ECHR.
In keeping with the spirit of the ECHR, the independence of the tribunal means above all ensuring, by means of structural, functional and personal guarantees, that there is no interference in the exercise of the court's duties by the executive, the legislature or any other authority (political, economic, social, cultural or any other such pressure groups) or by the parties themselves. (24) Accordingly, insofar as the European Court of Human Rights has acknowledged that as regards the independence of the tribunal within the meaning of Article 6 of the ECHR maintaining the appearance of independence is particularly important, (25) it must be acknowledged that banning interference in the court's work also contains a risk of interference or apparent intervention in that work.
In light of the above, it is apparent that where a ruling is to be given on a question relating to or connected with the conduct of a case such as a decision on the confidentiality of procedural documents and the disclosure of information in the file, effectively replacing the competent court by another body to rule on the matter in hand constitutes interference and, in any case, entails the risk or the suspicion of influence over the court in the exercise of its duties.
At this point, it is worth noting that those duties are not restricted merely to ruling on matters of fact or law relating to the substance of the case, but also involve ruling on any question concerning procedural matters. However, even if it were considered that the scope of the right enshrined in Article 6 of the ECHR does not extend to rulings on procedural matters, it must be acknowledged that interference in such rulings entails a risk and gives rise to a suspicion of interference in the exercise of the duties involved in ruling on the merits of the dispute before the court. In other words, the guarantee of procedural autonomy for every court, namely the possibility for the court itself, freely applying the rules governing the proceedings before it, to rule on questions concerning that procedure, is an essential guarantee and, in any case, a key indication of its independence as guaranteed by Article 6 of the ECHR and interpreted by the European Court in Strasbourg. (26) Accordingly, in corroboration of the argument that an indication of a possible attack on judicial independence is sufficient, it must be noted that, as mentioned in paragraph 43 of the contested judgment, the exception in question based on `the protection of the public interest (court proceedings)' entails refusing access to Commission documents even when their disclosure is merely `likely' to undermine the above public interest.
37 However, even if it were accepted that the principle of judicial procedural autonomy is not explicitly embodied in current legal theory and case-law relating to Article 6 of the ECHR, that would not constitute, in my opinion, an infringement of the ECHR.
It amounts to an embellished interpretation of the scope of that principle which the Court and the Court of First Instance are able to make as the ECHR is not their only source of inspiration for developing the general principles of Community law.
38 In light of the above considerations, I consider that the plea alleging infringement of Community law by infringement of Article 6 of the ECHR should be dismissed as ineffective and, in any case, unfounded.
B - Infringement of Decision 94/90
39 The Kingdom of the Netherlands considers that the interpretation of the system laid down by Decision 94/90 adopted by the Court of First Instance is in principle correct. (27) However, it considers that the provisions of that decision were disregarded when the above correct interpretation was applied to the exception relating to `the protection of the public interest (court proceedings)'.
The relevant plea contains five distinct limbs: (28) the first limb refers to the theoretical basis of the exception in question and, in particular, the principle of the `procedural autonomy' of the national courts (a); the second, third and fourth limbs refer to the criterion of application and the scope of interpretation of the above exception (b); the fifth limb refers to the implications of that interpretation for the uniform application of Community law (c).
(1) First limb
(a) Arguments of the parties
40 The Kingdom of the Netherlands contends that the Court of First Instance was mistaken in deducing from the principle of procedural autonomy that the author of a document drafted for a particular court procedure is not free to allow access to that document on the grounds that such access, at least while the procedure in question is pending, is contrary to the public interest. According to the Kingdom of the Netherlands, the principle of procedural autonomy, as defined in the Court's case-law which the Court of First Instance has clearly relied on, concerns the manner in which directly effective provisions of Community law are applied by national courts in their national legal order and means that the course of proceedings before the national court is determined exclusively by national law subject to certain conditions. (29)
However, according to the Kingdom of the Netherlands, in the present case the only question raised is whether the Commission is obliged to allow access to its own documents, which has nothing to do with the obligations of the national court and in no way undermines its autonomy.
Consequently, the Kingdom of the Netherlands considers that the Court of First Instance was mistaken in ruling that the exception in Decision 94/90 with respect to the protection of the public interest may be relied upon to protect the procedural autonomy of national courts. (30)
41 Likewise, the Kingdom of the Netherlands notes that the Court of First Instance does not draw all the inferences from that mistaken ruling. According to the appellant, if it is accepted that access to information in a file in particular court proceedings is a question governed by national law, there is no reason for restricting the principle of procedural autonomy merely to documents drafted for the purpose of that case (31) and only while it is pending. (32)
42 Moreover, according to the Kingdom of the Netherlands, the Court of First Instance has not undertaken any examination to verify whether the grant of access to the documents in question could have a substantial influence over the procedural autonomy of the national court.
In particular, it did not undertake the examination necessary to verify whether the national court allows access to information in the file under the national procedure and whether, in view of the decisive factor of national law, the Commission was able to authorise such access.
43 According to Mr van der Wal, there is no reason to accept that the Council and the Commission wished to use the exceptions contained in the Code of Conduct and in Decision 94/90 to safeguard the procedural autonomy of national courts. He contends that the exception referred to under `court proceedings' is designed solely to protect the interests of the parties in the specific procedure pending before the national court.
44 Finally, Mr van der Wal maintains that the principle of procedural autonomy is not embodied in the notion of an independent tribunal as defined in Article 6 of the ECHR.
45 According to the Commission, the first limb of the plea is based on a mistaken interpretation of the Court of First Instance's use of the term `principle of procedural autonomy'.
46 The Commission considers that the Kingdom of the Netherlands is mistaken in contending that, when the Court of First Instance refers to the above principle, it is referring to the Court of Justice's judgment in REWE, (33) since that case-law is not mentioned in the written or oral procedure before the Court of First Instance or in the contested judgment.
On the contrary, the Commission considers that the reasoning adopted by the Court of First Instance is completely consistent with the case-law cited before it by the Commission (34) to the effect that the national court has exclusive power to determine, on the basis of national procedural law, whether, at what point and under what circumstances the Commission's reply may be disclosed to third parties.
47 As regards the argument that the reasoning adopted by the Court of First Instance lacks coherence because it restricts application of the above principle to documents drafted specifically for particular court proceedings and only while those proceedings are pending, the Commission notes that the sections of the contested judgment relating to the circumstances of documents which exist independently of any specific pending proceedings are merely incidental opinions about which the Court of First Instance is not so categorical as the Kingdom of the Netherlands contends. This is logical as those circumstances are not the subject of either the contested judgment or the dispute brought before the Court of First Instance.
48 As regards the argument that, on the one hand, procedural autonomy would in no way be undermined if national courts allowed a third party access to documents in accordance with applicable national provisions and, on the other hand, that the Court of First Instance was obliged to carry out the relevant examination, the Commission considers that that would completely circumvent the autonomy of the national court.
Instead of leaving the national court to reply, the Commission, subject to review by the Court of First Instance, would have to substitute itself for the national court and reach a decision on the basis of its own interpretation of national law. Accordingly, the Court of First Instance was correct in ruling that such a situation would be incompatible with respect for the procedural autonomy of national courts.
49 Finally, as regards Mr van der Wal's assertion that the `court proceedings' exception is restricted to the interests of the parties, the Commission, after initially contesting the admissibility of the manner in which it was made, (35) notes that, on the one hand, Decision 94/90 refers to the `public' interest and to `court proceedings' as such and, on the other hand, the reasoning adopted by the Court of First Instance does not ignore the protection of the parties' interests. (36)
(b) My opinion
(i) Admissibility
50 According to the Commission, Mr van der Wal's assertion relating to the interpretation of the scope of the exception based on the protection of `the public interest (court proceedings)' is presented in an inadmissible manner because no grounds or explanation are given. In particular, referring to phrases in the text of the appeal such as `according to the appellant', (37) the Commission considers that that particular limb of the plea is based solely on the appellant's personal opinions devoid of any legal argument.
The Court has held that `an appeal must contain the pleas in law and the legal arguments in support of the form of order which the appellant requests the Court to grant ... an appeal must indicate precisely the contested elements of the judgment which it is requested to have set aside and also the legal arguments which specifically support that request'. (38)
In light of the above case-law, I consider that the Commission's contention is not convincing.
In the context of the plea concerning the Court of First Instance's mistaken interpretation of Decision 94/90 and, in particular, of the exception in question, the appellant contends that neither that judgment nor any other rule of law can provide grounds for the interpretation adopted by the Court of First Instance in paragraph 48 of the contested judgment.
After specifying the point of the contested judgment which is the subject of complaint, the appellant then attempts to interpret Decision 94/90 by way of general reference to the intention of its authors (paragraph 25 of his appeal) and the preceding legal regime (paragraph 26 of his appeal).
On the basis of the above, he maintains that the exception in question is intended exclusively to protect the interests of the parties and not the principle of the procedural autonomy of national courts which he challenges referring to subsequent points in his appeal.
I consider that the above presentation, albeit concise and relatively general, does not conflict with the requirements of the Court's case-law and contains - if only in minimal form - the necessary elements to found the relevant limb of the ground of appeal having regard in particular to the negative content of the assertion made by that limb, namely that there is no legal basis for the interpretation adopted by the Court of First Instance. That negative content justifies to a large degree the limited extent of the grounds for the limb of the plea in question.
Moreover, it must be acknowledged that phrases such as `according to the appellant ...' or `the appellant considers that ...' are simply ways of putting forward an argument, reflect the particular style of all pleadings and cannot by themselves positively or adversely affect the substantive scope of the pleadings concerned.
In view of the above, I propose that the Court dismiss the plea of inadmissibility submitted by the Commission and examine that limb of the plea alleging infringement of Decision 94/90.
(ii) Substance
51 It should be noted at the outset that there is no question of contesting the major premiss of the reasoning adopted by the Court of First Instance as formulated in paragraphs 41 to 43 of the contested judgment.
The Court of First Instance was therefore correct to note that Decision 94/90 is an act conferring on citizens the right of access to documents in the Commission's possession (39) and any exceptions to that right must be strictly construed and applied so that the application of the general principle enshrined in that decision is not jeopardised. The Court of First Instance was also correct in drawing a distinction between voluntary and mandatory exceptions. The second category includes the exception in question which allows institutional bodies to refuse access to a document whose disclosure is likely to undermine the protection of the public interest (court proceedings). Finally, the Court of First Instance was correct in pointing out that the Commission is obliged to refuse access to documents connected to court proceedings if, having regard to the information at its disposal, it considers that the disclosure to third parties of any document requested (40) may effectively undermine any of the public interests protected by the first category of exceptions. (41)
52 The appellants contend that the Court of First Instance applied the above major premiss wrongly in interpreting and applying the exception in question having regard to the material facts of the present case.
I will demonstrate below that, while the arguments on which the appellants base their assertion cannot lead to doubt being cast on the validity of the contested judgment, that same assertion may give rise to such doubt with regard to the Court of First Instance's failure to call on the Commission to verify the position of the national court so as to ensure the necessary strict application of the exception in question.
53 It should be noted at the outset that the assertion made by the Kingdom of the Netherlands that the Court of First Instance was mistaken in relying on the principle of the procedural autonomy of the national courts, which is not concerned with the question of whether the Commission is obliged to allow access to its own documents, should be dismissed, since it is based on a misunderstanding of the principle of procedural autonomy as employed in the contested judgment.
As the Kingdom of the Netherlands itself notes, the reference in the appeal to the case-law in REWE concerns the procedural autonomy of Member States in applying rules of Community law having direct effect.
That autonomy derives from the absence of integrated and systematic Community legislation in the field of procedural law. (42) That concept of procedural autonomy is not the same as the concept of the procedural autonomy of national and Community courts as referred to in the contested judgment for two reasons in particular.
First, apart from the fact that REWE is not cited in the text of the contested judgment, the procedural autonomy referred to is not that of the national legal order, but of the courts themselves; in other words, it is not concerned so much with determining the applicable law, but rather with defining jurisdiction and conditions for the application of that law. Consequently, referring explicitly to the independence of all courts, the Court of First Instance notes in the contested judgment that the `courts must be free to apply their own rules of procedure'. (43)
Second, the principle of procedural autonomy as employed in the contested judgment refers not only to national courts, but to `both national and Community courts'. (44)
Accordingly, when the Court of First Instance in its contested judgment refers to the courts freely applying `their own rules of procedure', it does not mean the national procedural rules to which the case-law in REWE refers, but the rules of procedure applied in every court, be it a national or Community court.
The principle of procedural autonomy referred to in the contested judgment is therefore directly linked to the aim of independence for all courts and implies that every court must be in control of the procedure in that court, in other words it is only the court that is competent to rule on any question concerning the application of the rules of procedure governing the proceedings without being subject to - and without there being any doubt as to whether it is subject to - pressures from third parties. (45)
54 Accordingly, it must be acknowledged that, based on the arguments developed in analysing the plea alleging infringement of the ECHR, Mr van der Wal's assertions that, on the one hand, the exception in question in Decision 94/90 is intended exclusively to protect the interests of the parties and, on the other hand, that the notion of an independent tribunal does not include the principle of procedural autonomy must also be dismissed as unfounded. As the Commission correctly notes, the wording of the exception in question which mentions `the protection of the public interest' and `court proceedings' clearly shows that the Council and the Commission were not concerned solely with protecting the interests of the parties.
In any case, as I have already noted, the contested judgment, far from ignoring the fact that the exception in question is intended to protect the interests of the parties, explicitly construes the principle of the procedural autonomy of national and Community courts as an institutional guarantee of the parties' interests. (46) Likewise, there are no grounds at all for concluding that the principle in question is not embodied in the notion of judicial independence as defined in Article 6 of the ECHR. On the contrary, that principle is an essential guarantee or, at any rate, a key indication that such independence exists. (47)
55 Moreover, I consider that the challenge to the validity of the Court of First Instance's reasoning on the ground, on the one hand, of the distinction drawn in paragraph 50 of the contested judgment between documents drafted for the sole purposes of a particular court case and other documents which exist independently of such proceedings, and, on the other hand, of the reference to the fact that the Commission is obliged to refuse access to the documents in question when court proceedings are pending, should be dismissed as ineffective.
Since it is clear that all the documents in question in the present case were drafted for specific proceedings to which the Commission was not party and which were pending at the time when the material facts of the case occurred, for the purpose of corroborating the legal and logical validity of the Court of First Instance's judicial reasoning it is sufficient to note that the interpretation adopted in the contested judgment applies mainly to documents concerned with questions of law arising in the context of specific pending proceedings.
56 In any case, I consider that the above two complaints are without foundation and do not support the plea.
The relevance of the distinction between the two categories of documents is apparent from the need to demonstrate an appropriate causal link between disclosure of the documents and infringement of the public interest created by interference with the procedural autonomy of the competent court.
Indeed, when, as in the material case, the Commission is not party to a specific court case, such interference cannot exist except in relation to documents connected with that case.
The contribution of the strict formal criterion governing the drafting of documents for the sole purpose of a particular court case justifies, on the one hand, those documents being considered as contents of the file directly connected with a specific court case and, on the other hand, making possible disclosure of those documents dependent on the decision of the competent court hearing the particular case.
By contrast, the same does not apply to documents which exist independently of any court proceedings.
It is logical to assume that such documents do not refer to the court case, but reiterate - by way of confirming matters of fact - information to which those concerned can gain access from other sources. Accordingly, even if the documents in question constitute or constituted information in a case-file, it must be assumed that they are not directly connected with the procedural documents whose confidentiality depends on the competent court and there is therefore no reason for them to be covered by the exception relating to the protection of the procedural autonomy of that court.
If those documents were covered by the exception in question, that would clearly amount to an unwarranted and excessively broad interpretation of that exception.
As regards the reference to court proceedings that are pending, it should be noted that, regardless of whether the exception in question may validly be extended to cases that are not pending, (48) the argument put forward by the Kingdom of the Netherlands is based on a mistaken premiss. Indeed, neither the abovementioned paragraph 51 cited in the appeal, nor any other paragraph in the contested judgment appears to indicate that the Court of First Instance categorically restricted application of the principle of judicial autonomy exclusively and solely to pending court proceedings.
On the contrary, in paragraph 51 of the contested judgment, the reasoning adopted by the Court of First Instance appears to be focussed within the boundaries of the material facts of the instant case which is concerned with documents relating to pending court proceedings.
57 In contrast to the assertions of the appellants considered above, the complaint put forward that the Court of First Instance did not undertake the examination required pursuant to Decision 94/90 is sufficient to cast doubts on the correctness of the contested judgment.
58 The arguments advanced by the appellants in that connection do not seem to be convincing.
Neither the Commission nor the Court of First Instance itself could interpret independently the relevant national procedural law relating to access to the documents in question without undermining the principle of the procedural autonomy of the competent national court.
As I have already indicated, the key issue in the present case is that of determining the body competent to rule on the question raised and not that of the substance of the reply to the question as to whether or not the documents in question should be disclosed. Moreover, in order to reply to that question, it is not sufficient to be conversant merely with the meaning of the national procedural provisions to be applied, but - with respect to the application of those provisions - the facts of each court case must obviously be known in order to assess whether disclosure of the documents in question would in fact adversely affect the conduct of the proceedings.
From this point of view, it is obvious that neither the Commission nor the Court of First Instance could independently make that assessment without creating the impression of interfering in the work of the national court. (49)
59 However, I consider that, having regard to the spirit of Decision 94/90 and the need to safeguard its effectiveness, the Commission, under the control of the Court of First Instance, was obliged not to make an independent assessment as to whether, pursuant to national law, it had the right to disclose the documents in question, but was bound to make every effort to ascertain the position adopted by the competent national court on that matter.
In other words, the Commission was obliged to request the competent national court to adopt a position on the crucial question concerning the disclosure of the letter in question and, in particular, to indicate whether or not it agreed with the letter's disclosure.
Depending on the binding declaration made by the national court, the Commission could allow or refuse access to the documents in question. (50)
There appear to be numerous reasons in favour of such an interpretation of the Commission's obligations flowing from Decision 94/90.
First, such an interpretation does not conflict with respect for the procedural autonomy of the national court, which remains solely competent to rule on disclosure of the documents.
Second, it provides an even greater guarantee of the effectiveness of the general principle of the widest possible access to documents, as laid down in Decision 94/90: indeed, as I will show when examining the remaining limbs of the ground of appeal concerned with the interpretation of Decision 94/90, making every possible effort to ascertain the opinion of the national court constitutes in the material case an appropriately strict application of the exception in question based on `the protection of the public interest (court proceedings)'. (51)
Third, reference to the specific position of the national court constitutes an element of the legality of the reasoning of the Commission's negative decision.
In general, it reinforces its completeness insofar as the Commission will be able to explain its decision more fully by way of reference to the declared position
- or even to the absence of such a declaration - by the national court. (52)
Fourth, the attempt to ascertain the opinion of the competent national court is consistent with the principle of sound administration which, in the material case, requires the Commission, on the one hand, to make every possible effort to implement effectively the right of access to its documents, an effort which is important regardless of its final outcome, and, on the other hand, not to confine itself to relying on its general lack of powers in order to refer the citizen as regards matters of Community administration to procedures that are probably time-consuming and expensive for submitting particular applications to the various national courts. (53)
Fifth, that particular interpretation of the Commission's obligations is not inconsistent with its broader duties nor is it excessively burdensome since there is an open line of communication with the competent national courts through the cooperation procedure already established between the Commission and those courts for the purpose of implementing Articles 85 (now Article 81 EC) and 86 (now Article 82 EC) of the EC Treaty.
60 In light of the above observations, some of which will be analysed at greater length below, I consider that the Court of First Instance's judgment should be set aside on the grounds that it misinterpreted Decision 94/90 in relation to the Commission's obligations to apply the exception based on `the protection of the public interest (court proceedings)' and, consequently, did not undertake the necessary examination of compliance with those obligations in the context of its review of the grounds for the Commission's refusal to allow access to the documents in question. (54)
On the other hand, I propose that the Court dismiss as groundless the assertions made by the appellants in support of the first limb of the appeal alleging infringement of Decision 94/90.
(2) Second, third and fourth limbs
(a) Arguments of the parties
61 In the second limb of the first ground of appeal, the Kingdom of the Netherlands claims that the Court of First Instance, in ruling whether access to a document that is before a court could undermine the public interest, mistakenly based its judgment on the identity of the recipient of that document, in other words on the fact that the document concerned was addressed to a national court. According to the Kingdom of the Netherlands, the criterion employed by Decision 94/90 concerns the information contained in the document, as correctly pointed out in paragraph 43 of the contested judgment.
62 Moreover, according to the Kingdom of the Netherlands, the Court of First Instance was mistaken in failing to examine, in respect of each document separately, whether access to it was justified on the basis of its contents, which may also be explained by the fact that the documents in question were not produced before the Court of First Instance. (55)
63 In the third limb of the first ground of appeal, the Kingdom of the Netherlands contends that the interpretation placed on Decision 94/90 by the Court of First Instance means that the Commission can never allow access to a document drafted for a particular court case while that case is pending.
The implication of the above interpretation is that access is not possible to a whole category of documents which are thereby excluded from the scope of application of Decision 94/90 without any basis in law.
For that reason, the interpretation given by the Court of First Instance in the contested judgment is incompatible with Decision 94/90.
64 In the fourth limb of the first ground of appeal, the Kingdom of the Netherlands contends that the exceptions to the general principle of access to documents in the possession of the Commission as laid down by Decision 94/90 must be strictly construed and applied.
The broad interpretation given by the Court of First Instance, whereby all documents drafted by the Commission for a particular court case are excluded from the scope of application of that principle regardless of their contents, is incompatible with Decision 94/90 and undermines its purpose insofar as it makes it impossible to achieve the specific goal of transparency in relations between the Commission and the national court. (56)
65 As regards the second limb of the first ground of appeal, the Commission, which also raises a question concerning the admissibility of Mr van der Wal's assertions in this respect, (57) contends that nowhere does Decision 94/90, which mentions `the protection of the public interest (court proceedings)', state that in order to guarantee that protection only the nature of the information need be considered.
The reasons for refusing the access requested are dealt with sufficiently in paragraphs 45 to 52 of the contested judgment.
In particular, in paragraph 53 it is noted that it is irrelevant whether the three documents contained business secrets.
Finally, it may be inferred from paragraph 52 of the contested judgment that the Court of First Instance carried out a separate examination of each document. According to the Commission, the Kingdom of the Netherlands does not accept the findings of the examination carried out by the Court of First Instance, not because each document was not examined separately but because it does not accept the major premiss of the Court of First Instance's reasoning in paragraphs 45 to 52 of the contested judgment.
66 As regards the third limb of the first ground of appeal, the Commission, which raises the issue of the admissibility of the relevant assertions made by the Kingdom of the Netherlands, (58) also notes that the interpretation adopted by the Court of First Instance does not exclude the documents in question from the scope of application of Decision 94/90, but simply means that those documents are subject to one of the exceptions to that decision in compliance with which the Commission is obliged to refuse access thereto.
67 As regards the fourth limb of the first ground of appeal, the Commission notes that the interpretation placed on the exception in question by the Court of First Instance is correct.
It is quite clear from the wording of Decision 94/90 that, for the Commission to be obliged to refuse access to a document, it is sufficient that disclosure of that document be likely to undermine the public interest particularly in the case of court proceedings.
(b) My opinion
(i) Admissibility
68 The Commission maintains that Mr van der Wal does not specify the paragraphs of the contested judgment against which his assertion is made, namely that the Court of First Instance did not carry out the necessary separate examination of each document nor request the Commission to do so in order to ascertain whether disclosure of the documents was likely to undermine the public interest. Accordingly, pursuant to the Court's case-law, this limb of his plea must be regarded as inadmissible.
As already noted, the Court has held that `an appeal must contain the pleas in law and the legal arguments in support of the form of order which the appellant requests the Court to grant ... an appeal must indicate precisely the contested elements of the judgment which it is requested to have set aside and also the legal arguments which specifically support that request'. (59)
I consider that the manner in which Mr van der Wal makes his complaint on this point is not contrary to the above case-law.
The appellant refers to paragraph 43 of the contested judgment in which, as he emphasises, the Court of First Instance acknowledges that the Commission must examine the contents of each document separately. Following on from the above observation, the appellant submits that at no point in the contested judgment did the Court of First Instance check whether the Commission actually carried out that examination.
In view of the negative character of that assertion alone, it would be difficult to argue convincingly that the appellant ought to have indicated precisely the paragraphs in the judgment where the Court of First Instance had failed to make, according to him, the necessary check.
In light of the above, I propose that the Court consider Mr van der Wal's complaint admissible and proceed to examine whether it is well founded.
69 The Commission also challenges the admissibility of the third limb of the first ground of appeal on the basis that the Kingdom of the Netherlands reiterates the arguments developed in paragraphs 16 to 22 of the statement in intervention submitted to the Court of First Instance.
According to the abovementioned case-law of the Court, an appeal which merely repeats or reproduces word for word the pleas in law and arguments previously submitted to the Court of First Instance, without indicating precisely the contested elements of the judgment and also the legal arguments specifically advanced in support of the appeal, is inadmissible. (60)
Such an appeal amounts in reality to no more than a request for reexamination of the written pleadings submitted to the Court of First Instance which, pursuant to Article 49 of the EC Statute of the Court of Justice, the Court of Justice does not have jurisdiction to undertake.
I consider that, in the material case, the particular assertion made by the Kingdom of the Netherlands, despite its undoubted similarity to the assertion which it put forward at first instance, does not conflict with the above case-law and, in any case, that assertion together with other assertions submitted by the appellants raise questions which must be examined in the course of the appeal proceedings.
Before the Court of First Instance, the Kingdom of the Netherlands maintained that the Commission's interpretation of the exception to Decision 94/90 had the effect of excluding a whole category of documents from the scope of application of that decision. In its appeal (paragraph 18), the Kingdom of the Netherlands, noting that there is a similar mistaken interpretation of the exception in question, repeats the same legal argument, but explicitly directs it at the contested judgment (particularly against paragraph 50 of that judgment). Regardless of the similarity of the two arguments, the argument formulated in the appeal (in the third limb of the second ground of appeal) makes adequate reference to the contested elements of the judgment.
Moreover, as part of a systematic interpretation, that argument must, on the one hand, be regarded as inseparable from the arguments presented in the remaining limbs of the same plea (broad interpretation and scope of application of the exception in question).
On the other hand, it should be noted that, in an appeal, examination of the general question of interpretation of the exception in question will differ from examination of that question at first instance because the Court of First Instance, as both appellants maintain, interpreted the decision in question, in the major premiss of its reasoning, by referring to the right of every person to a `fair hearing', a point on which the parties had not adopted a position at first instance. In light of the above two observations, I consider that it must be accepted that, in any event, examination of this argument, viewed as part of a wider ground of appeal, does not ultimately entail a mere reexamination of the written pleadings submitted to the Court of First Instance.
For this reason, I propose that the Court dismiss the plea of inadmissibility submitted by the Commission and examine whether the claims and arguments advanced as a whole are well founded.
(ii) Substance
70 The appellants' arguments in the second, third and fourth limbs of the second ground of appeal refer to the broad interpretation and scope of application of the exception in question based on `the protection of the public interest (court proceedings)'.
Regardless of the manner of presentation of the appellants' various arguments, the failure by the Court of First Instance in its interpretation of Decision 94/90 to recognise its obligation to examine whether the Commission had made every possible effort to ascertain the opinion of the national court may result in the contested judgment being set aside.
71 It is worth noting at the outset that in its interpretation of Decision 94/90 the Court of First Instance was not mistaken when it considered that, in order to decide whether access to the documents in question could undermine the public interest (court proceedings), that interpretation had to be based not on `whether the three documents contained business secrets', but on the reason why they were drafted, on the identity of the recipient and, in general, on the fact that `those letters thus concerned points of law raised in the context of specific pending proceedings'. (61)
72 According to the wording of the provision of Decision 94/90 in question, the institutions may refuse access to any document `where disclosure could undermine' the protection of the public interest (court proceedings). The criterion governing the application of the exception, in other words the criterion for establishing that a risk of undermining the public interest exists, is the likely consequences of the act of disclosure. It is, of course, obvious that disclosure will frequently entail a risk of undermining the public interest because of the contents and nature of the information contained in the documents in question. (62)
However, in view of the particular circumstances in each individual case, there is nothing to preclude the risk's being due to other factors such as the reason why the documents were drafted and the identity of their recipient.
Moreover, such factors frequently help those interpreting the documents in question to make an initial judgment as to their contents.
73 Accordingly, given the particular circumstances of the present case, the Court of First Instance correctly confined itself to examining the combination of factors in question which, in any event, had not been challenged by the parties.
The fact that documents which had been drafted for particular court proceedings, were addressed to the national court and constituted part of the file in pending cases, were involved is sufficient to establish with certainty that those documents related to matters arising in the course of specific pending proceedings.
As to the breadth of that determination of the contents of the documents, as explicitly set out in paragraph 52 of the contested judgment, it may of course be indirect and limited. However, it is sufficient to impose an obligation on the Commission (63) - provided for in any case in Decision 94/90 - to refuse disclosure of documents where it is ascertained that such disclosure would entail a risk of undermining the public interest which, in the present case, is linked to the procedural autonomy of the competent national court.
Once there was a determination of an extent to justify sufficiently a risk that disclosure of the documents by the Commission would entail, there was no reason for any further examination of those documents nor, a fortiori, for producing them before the Court of First Instance.
On the contrary, to impose an obligation to carry out a further examination (for example, with regard to the specific contents of the documents, as to whether the conduct of the court proceedings was likely to be affected) would probably put the Commission and the Court of First Instance at risk of interfering in the work of the national court. (64)
74 It is clear from the above that the Commission, far from adopting a mistaken criterion governing application of the exception in question, actually examined the contents of the documents as required for the correct application of the exception. Accordingly, as regards the matter in question, the Court of First Instance correctly checked the application of the exception by specifically referring to each document separately, as is clearly shown by paragraphs 52 and 53 of the contested judgment.
75 At the same time, it is evident, as the Commission also notes, that the Court of First Instance did not exclude the documents in question from the scope of application of Decision 94/90, but applied one of the abovementioned exceptions to those documents, in compliance with which the Commission was obliged to refuse their disclosure. Moreover, the argument, in this case, that a whole category of documents was excluded appears to be more of a rhetorical flourish than a well-founded statement of fact. Since each document was checked separately and the reason for banning their disclosure is the same in each case, it is logical that the grounds for refusing access to them - and for checking those grounds - are collective.
The same would occur in the event of any other exception being applied in respect of, for example, a series of documents each of which contained business secrets. Does the reference in the major premise of the reasoning, and in the minor premise applied to each document separately, to the fact that access is denied in respect of every document containing business secrets constitute an unwarranted exclusion of an entire category of documents from the scope of application of Decision 94/90, or is it merely a practical presentation of a common interpretation and application of that corresponding exception in cases which have been examined separately and which obviously share similarities?
In the final analysis, it should be noted that the fact that the Court of First Instance adopted an interpretation which prohibits access to certain documents on the basis of the criteria employed above does not automatically render the interpretation and application of that exception unjustifiably broad (65) if it is legally and logically correct.
76 Moreover, the argument that the interpretation and application of the exception in question followed by the Court of First Instance undermine the purpose of Decision 94/90, insofar as they make it impossible to fulfil the specific objective of transparency in relations between the Commission and national courts, appears groundless.
It should be noted that no provision in Community law establishes the existence of a `specific objective' of transparency in relations between the Commission and national courts.
What does exist is the principle of transparency embodied in the right of access to the Commission's archives.
That right is governed by Decision 94/90 which, as previously explained, introduces an exception to the principle of transparency for the purpose of protecting the procedural autonomy of national and Community courts.
In the national legal systems there probably exists a specific objective of transparency in relation to proceedings before the national courts. However, in the absence of Community legislation on the matter and in view of the principle of the procedural autonomy of the Member States, investigation and consideration of that objective is outside the Court's competence.
Accordingly, even if it were
maintained that the `specific objective' of transparency in relations between the Commission and the national courts constituted an essential guarantee of non-interference by the former in the work of the latter and was based on the right of every person to a fair hearing by an independent and impartial tribunal, two factors would have to be taken into account: first, the transparency of court proceedings is guaranteed by notifying the Commission's replies to the parties concerned and, second, at the present stage of development of Community law, the procedure for guaranteeing greater transparency for third parties would come within the regulatory scope of the principle of the procedural autonomy of the Member States and the principle of the procedural autonomy of the national and Community courts. Consequently, reliance on that `specific objective' to challenge the interpretation adopted in the contested judgment would be pointless. Finally, as regards relations between the Commission and the national courts for the purpose of implementing Articles 85 and 86 of the EC Treaty, it is worth remembering that, in the present case, they are governed by the Court's case-law (66) and Notice 93/C 39/05. (67)
However, neither of these appear to establish a `specific objective' of transparency in the relations concerned.
On the contrary, the fact that, on the one hand, the question of the form and conditions for achieving cooperation between the Commission and the national courts is considered in the context of national procedural law, (68) and, on the other hand, the climate of confidence and cooperation in good faith deriving from Article 5 of EC Treaty (now Article 10 EC) which must exist between the Commission and national judicial bodies, would probably make the Commission have reservations about disclosing documents.
77 Although the appellants' abovementioned assertions must be dismissed as unfounded, it should nevertheless be noted that the obligation to apply the exception in question strictly on the basis of `the protection of the public interest (court proceedings)', an obligation to which the contested judgment itself refers (69)
and which the appellants contend has been infringed by the Court of First Instance, was not properly observed by the Court of First Instance when it reviewed the Commission's action.
In particular, in order to establish operational efficiency and not compromise the essential protection of the right of access to Commission documents conferred in Decision 94/90, strict application of the exception in question implies that the Commission is obliged to take steps which, without going beyond the limits of its duties, will minimise the scope for refusing disclosure of documents, thereby effectively reducing to the absolute minimum the need to invoke the exception in question and the opportunities for its application. (70)
In the present case, the steps concerned would involve seeking the opinion of the competent national courts on the question of disclosing each separate document so that, in the event of each competent national court giving its consent, the Commission could disclose the documents requested.
The Commission was therefore obliged to take every possible step to ascertain such an opinion.
In the present case, the range of possible steps, which would not go beyond the scope of the information to which the Commission may normally have access in the course of its duties, would include the sending of a question to the national courts with whom the cooperation procedure had already been opened for the purpose of applying Articles 85 and 86 of the EC Treaty. (71)
78 On the basis of the above, I therefore consider that the contested judgment is liable to be set aside and, as I will show below, (72) should be, on the grounds that the Court of First Instance, in mistakenly interpreting and applying in this case the obligation to apply the exception based on `the protection of the public interest (court proceedings)' strictly, failed to examine, as it was obliged to do, whether the Commission had taken all necessary and appropriate steps to minimise the need for the application of the above exception.
That omission may have a crucial effect on the operative part of the judgment because, if the Court of First Instance had conducted such an examination and noted that the Commission had not taken the relevant steps, it would have been obliged to hold the Commission's contested decision invalid.
(3) Fifth limb
(a) Arguments of the parties
79 According to the Kingdom of the Netherlands, an interpretation to the effect that the national court has sole responsibility for the decision, on the basis of national procedural law, on access to the Commission's documents, at least while the proceedings are pending before the national court, implies that such access is dependent on the particular legal system applied, thereby undermining the uniform application of Community law and, in particular, Decision 94/90.
80 According to the Commission, however, the contested judgment in no way entails the non-uniform application of Decision 94/90.
The Commission must always refuse to disclose replies addressed to national courts in the context of the decentralised application of competition law.
The fact that in some Member States courts will allow access to certain documents and in other Member States they will not has nothing to do with the uniform application of Community law.
(b) My opinion
81 I consider that neither the interpretation of Decision 94/90 adopted by the Court of First Instance nor the interpretation which I propose be adopted by the Court (73) distorts the uniform application of Community law and, in particular, the above decision.
The scope of Community law applied in the material case is as follows: the principle of the procedural autonomy of the national court implies that only that court is competent to rule on the disclosure or non-disclosure of information in the file of a pending case and that the Commission is obliged to refuse disclosure of that information once it has carried out the necessary steps to ascertain the opinion of the national court.
That regulatory scope of Community law is capable of uniform application regardless of the fact that, according to the relevant national procedural law, which of course
may not render the exercise of rights conferred by the Community legal order (74) virtually impossible or excessively difficult, the same documents may be disclosed in one Member State but not in another.
As the Commission correctly observes, any lack of uniformity which may arise in relation to the possible disclosure of a specific document within the European Union is not due to the above interpretation of the regulatory scope of the exception based on `the protection of the public interest (court proceedings)'.
Such possible lack of uniformity is the consequence of the absence of harmonisation at Community level of national procedural rules and of the attendant principle of the procedural autonomy of the Member States (75) which the Kingdom of the Netherlands, in its appeal, (76) refers to as being safeguarded in case-law.
82 In light of the above, the assertions made by the Kingdom of the Netherlands in the fifth limb of the first ground of appeal alleging an infringement against the uniform application of Community law must be dismissed as unfounded.
C - Infringement of the combined provisions of Articles 33 and 44 of the EC Statute of the Court of Justice
(1) Arguments of the parties
83 According to the Kingdom of the Netherlands, the contested judgment is not properly reasoned because the Court of First Instance does not give the reason (77) why Article 6 of the ECHR, on which is based the principle of the procedural autonomy of the national court, is infringed in a case where the Commission takes a decision on access to documents which the Commission itself has drafted for the purpose of a specific court proceeding.
84 Moreover, according to the appellant, the contested judgment is incomprehensible because the Court of First Instance acknowledges, on the one hand, that the national courts are free to apply their own rules of procedure concerning the powers of the court, the conduct of the proceedings in general and the confidentiality of the procedural documents on the file in particular (78) and, on the other hand, restricts the principle of the procedural autonomy of the national court to documents drafted by the Commission for specific court proceedings for as long as those proceedings are pending. (79)
On this last point, the Kingdom of the Netherlands states that it is difficult to understand why the procedural autonomy of the national court is concerned exclusively with certain information on the file, or why the provisions concerning the publication of procedural information relating to national rules of procedure should be excluded once the proceedings are no longer pending.
85 Referring to the observations made in relation to the second, third and fourth limbs of the second ground of appeal (as set out in this Opinion), Mr van der Wal contends that the grounds of the contested judgment are inadequate because the Court of First Instance did not examine, in respect of each document separately, whether the Commission was able, with regard to the information contained in each document, to rely on the protection of the public interest to refuse access to those documents. He adds that the contested judgment provides no grounds to explain why the Court of First Instance considers in paragraph 45 of its judgment that it must take account of Article 6 of the ECHR and why the Court of First Instance concludes that the principle of procedural autonomy may be deduced from the right of every person to a fair hearing by an independent and impartial tribunal.
Precise reasoning in relation to the above is all the more essential since it was a determinant factor in the legal assessment of the Court of First Instance and was not been relied on by the parties.
86 According to the Commission, the Kingdom of the Netherlands distorts the reasoning adopted by the Court of First Instance.
In the relevant paragraphs of the contested judgment the Court of First Instance is replying to the applicant's first argument according to which the exception relating to court proceedings is concerned only with proceedings to which the Commission is party.
The Court of First Instance rejects that complaint (paragraph 49 of the contested judgment) on the basis of the interpretation of Decision 94/90 (paragraph 48 of the contested judgment) by virtue of which the exception in question contained in that decision is designed to safeguard the procedural autonomy of national and Community courts.
The contested judgment makes no reference to any infringement of Article 6 of the ECHR. Reference to that article is merely an attempt to provide a theoretical basis for the principle of procedural autonomy.
If paragraphs 45 and 46 which refer to the ECHR were dispensed with, the substance of the contested judgment would remain the same.
87 According to the Commission, it is important to establish not whether the Court of First Instance provided adequate grounds for an infringement of Article 6 of the ECHR, but whether it provided adequate grounds for its interpretation of the exception concerning the public interest or, better still, whether it provided adequate grounds for dismissing the first plea for annulment submitted to the Court of First Instance by the applicant according to which the above exception mentioned in Decision 94/90 applies solely to proceedings to which the Commission is party.
In this respect, the Commission considers that the contested judgment is sufficiently clear with regard to the reasoning adopted by the Court of First Instance and that paragraph 47 is convincing as regards the principle of procedural autonomy which is essential to the independence of the courts.
88 Finally, the Commission repeats the argument that the sections of the contested judgment which refer either to documents that exist independently of the proceedings or to situations where the proceedings for which the documents were drafted have been concluded may be regarded only as incidental opinions from which Mr van der Wal can derive no benefit.
(2) My opinion
89 The question as to whether the grounds of a judgment adopted by the Court of First Instance are contradictory or inadequate is a question of law which is amenable, as such, to judicial review on appeal. (80)
However, the appellants' arguments concerning defects in the grounds of the contested judgment must be dismissed as ineffective or without foundation.
First of all, the arguments concerning the failure to provide proper justification with regard to the need to interpret Article 6 of the ECHR, that article's relationship to the principle of the procedural autonomy of national and Community courts, and the infringement of that article must be dismissed at the outset as ineffective, since they cannot lead to the annulment of the judgment. Even if those arguments were regarded as well-founded, in other words even if it were considered that, as regards their formulation, the relevant reasons given by the Court of First Instance were inappropriate or inadequate, the particular conclusions reached by the Court of First Instance in relation to the right enshrined in Article 6 of the ECHR would in any case, as already explained, (81) have to be regarded as legally and logically correct. Accordingly, the Court has accepted that, if the grounds of a judgment adopted by the Court of First Instance infringes Community law, but the operative part of the judgment appears well-founded for other legal reasons, the appeal should be dismissed. (82)
However, in any case, the appellants' arguments concerning the reasons for the reference in the contested judgment to Article 6 of the ECHR should be dismissed as unfounded.
In particular, as I have already noted in the context of the general principles of Community law, the Court of First Instance was correct in referring to the above right, which is safeguarded by Article 6 of the ECHR, and in deducing the principle of procedural autonomy from that right. (83) Consequently, the Court of First Instance's interpretation of the scope of the exception in question based on `the protection of the public interest (court proceedings)', (84) in reply to the plea submitted to it, was correctly and adequately reasoned when it stated that `[i]ts scope therefore entitles the Commission to rely on that exception even when it is not itself party to the court proceedings which, in the particular case, justify the protection of the public interest'. (85)
Moreover, at no point did the Court of First Instance, while arguing at the level of the general principles of Community law, state that there was an infringement of Article 6 of the ECHR.
90 The arguments concerning the lack of reasoning or defective reasoning in relation to the application of the principle of procedural autonomy solely to documents drafted for specific court proceedings and only for pending cases must also be dismissed as ineffective and, in any case, unfounded.
In support of that view, I refer back to my earlier analysis (86)
and simply note here that the grounds for applying the principle of procedural autonomy to documents drafted independently of court proceedings and to proceedings which are no longer pending were not essential for resolving the dispute submitted to the Court of First Instance or for supporting the operative part of the contested judgment. (87)
91 Finally, as regards the argument that the grounds of the contested judgment are defective because the Court of First Instance did not examine in respect of every document separately whether the Commission could, having regard to the information contained in each document, rely on the protection of the public interest to refuse access to those documents, I consider that it should be regarded as ineffective because, as I have already indicated, in paragraph 52 of the contested judgment the Court of First Instance examined, as it was obliged to do, in respect of every document separately those points that were essential to determine whether, in view of the likely consequences of the act of disclosure, there was any risk of undermining the public interest (court proceedings). (88) Consequently, even if that were regarded as contradicting paragraph 43 of the contested judgment which, according to the Dutch version, (89) refers to the assessment of the information contained in the document in question, such a contradiction could not justify setting aside the judgment insofar as, despite the error in the major premise of the reasoning relating to the scope of the information that should be taken into account, there was no error of law or logic in the minor premise nor in the conclusion arrived at by that reasoning. (90)
92 The grounds of the contested judgment are nevertheless mistaken in relation to the examination which the Court of First Instance was obliged to carry out as regards the application of the exception in question by the Commission. While the Court of First Instance expressly stated that all exceptions must be construed and applied strictly, (91) it did not in general terms construe and apply the exception in question correctly.
Consequently, the Court of First Instance did not undertake the necessary verification and therefore did not establish adequate grounds in law for ultimately reaching the view that the Commission's application of the exception in question was appropriate. (92)
In particular, given the circumstances of the present case, in order to reply to the assertion submitted to it that the Commission wrongly interpreted and applied the exception in question based on `the protection of the public interest (court proceedings)', (93) the Court of First Instance was obliged, as I have already indicated, to examine whether the Commission took all necessary and appropriate steps in the material case to minimise the need for the above exception to be applied and was also obliged to report the results of that examination.
The failure by the Court of First Instance to carry out that examination, which was initially due to the mistaken interpretation of Decision 94/90 concerning the Commission's obligations when applying the exceptions to freedom of access, also renders the grounds of the contested judgment inadequate.
In particular, the Court of First Instance, in examining the contested decision, failed to provide sufficient grounds in law as to why it considered that the Commission correctly - and therefore strictly - applied the exception in question. For that reason, the judgment of the Court of First Instance should be set aside by reason of defective grounds.
D - Infringement of the principle of the autonomy of the parties and the rights of the defence
(1) Arguments of the parties
93 According to Mr van der Wal, in paragraphs 45 to 51 of the contested judgment the Court of First Instance infringed, on the one hand, the principle of the autonomy of the parties, as that principle is applied in Community law and often referred to in the various national courts as the principle of judicial neutrality or dispositive principle and, on the other hand, the principle of the protection of the rights of the defence.
According to the appellant, the Court of First Instance founded its assessment on Article 6 of the ECHR, (94) although the parties did not rely on that provision, (95) and the grounds for relying on that article were inadequate. Consequently, the Commission's conduct is justified and validated a posteriori by the Court of First Instance for reasons not adduced by the Commission itself.
Moreover, the Court of First Instance infringed the rights of the defence insofar as the parties did not found any arguments for the defence on the ECHR, given that the ECHR was not referred to in either the contested decision or the proceedings before the Court of First Instance, while that argument was a decisive factor in the assessment arrived at by the Court of First Instance.
94 The Commission maintains that it is inaccurate to state that the Court of First Instance bases its findings on Article 6 of the ECHR and that it exceeded the confines of the dispute between the parties.
The Commission's refusal to allow access to the documents in question, which was based on `the protection of the public interest (court proceedings)' and the consideration that it was for the national courts alone to determine, on the basis of their national law, the conditions under which those documents could be disclosed to third parties, was therefore essentially based on the principle of the procedural autonomy of the national court.
The Court of First Instance confirmed that principle and that interpretation of Decision 94/90, in response to which the applicant was able to present in his defence before the Court of First Instance all the pleas, claims and arguments he so wished. Reference to the ECHR was no more than a theoretical clarification of the basis of that principle.
Moreover, Mr van der Wal does not explain how his defence before the Court of First Instance would have differed if the ECHR had been expressly pleaded.
(2) My opinion
95 While it must be generally accepted that the Court of First Instance cannot rule ultra petita, in the sense that it is restricted in principle by the confines of the dispute as defined by the parties, it cannot be maintained that that is the situation in the present case.
As already demonstrated, the Court of First Instance did not base its judgment on Article 6 of the ECHR, but on the interpretation of the exception contained in the Code of Conduct relating to `court proceedings'.
That interpretation is based on a theoretical analysis of the general principles of Community law, into which slips reference to Article 6 of the ECHR. As already noted, such reference is not unjustified, does not constitute an infringement of Community law and does not undermine the grounds of the contested judgment.
Accordingly, it should be noted that an interpretation of the above exception contained in the Code of Conduct was explicitly requested by the parties at first instance in the pleas for annulment and in the arguments submitted by them in that respect before the Court. (96)
It is therefore clear that the reference to Article 6 of the ECHR is not a new argument devised by the Court of First Instance, but the development of its reasoning in relation to the scope of the assertion submitted to it by the applicant.
From that fact alone it follows that, in conformity with the Court's case-law, there can be no question of the Court of First Instance exceeding the scope of the dispute or ruling ultra petita. (97)
However, it could never be accepted that, in seeking the true meaning of key legal provisions, particularly those relied on by the parties themselves, the court is bound by the arguments of the parties or obliged to inform them of every argument in law making up the major premise of his reasoning.
Determining the meaning of the law does not fall within the scope of application of a principle which allows the parties a free hand to determine the scope of the case.
That position does not conflict with the court's obligation not to rule ultra petita, while the contrary position would entail a serious risk of delivering judgments bases on erroneous legal considerations. (98)
96 Moreover, it may be inferred from the above that the Court of First Instance was not obliged to inform the parties of its intention to refer - in the way it did - to Article 6 of the ECHR or request them to respond accordingly.
It is clear that the Court of First Instance respected the principles of giving both parties a hearing and of protecting the rights of the defence, since the parties had the opportunity to present their arguments concerning the pleas for annulment and claims put forward in the context of which the Court of First Instance reached its judgment.
Moreover, as the Commission correctly noted, the appellant does not explain how his defence before the Court of First Instance would have differed if the article of the ECHR in question had been an issue from the start.
97 It should also be noted that there is no question of replacing the grounds of the Commission decision with the grounds of the Court of First Instance judgment. The Commission founded its refusal to allow access to the documents in question on the exception based on `the protection of the public interest (court proceedings)', interpreting that exception as meaning that, once as it had forwarded the letters of reply to the national courts and those letters became an integral part of the files of cases pending before those courts, the question of the publication and/or disclosure of those letters was primarily the responsibility of the national court to which each letter was addressed. (99)
The principle of procedural autonomy relied on and applied by the Court of First Instance in the contested judgment and linked, in the manner already noted, to Article 6 of the ECHR is essentially no different to the explanation given by the Commission, as is also evident from an analysis of the other grounds of appeal.
If, despite that, there is any difference between the two explanations, that difference, at the level of legal terminology, does not lie in the ratio, in the regulatory scope of the exception in question or in the manner in which that exception was to be applied having regard to the material facts of the case, but in the precise definition of the theoretical basis of the exception in question.
However, such a difference is not the same as replacing the grounds or, of course, replacing the legal basis of the contested decision.
Finally, it is worth noting that the fact that, in applying the exception in question, the Commission's powers are circumscribed, (100) precludes the possibility of the grounds being improperly replaced.
In other words, since there is no doubt that the documents in question were drafted for specific court proceedings and constitute information in the file in those proceedings which are still pending, there can be no question of the grounds being improperly replaced because the Commission has no discretion in the matter, but is obliged to refuse access to those documents; it therefore cannot be maintained that an assessment or clarification which is, moreover, theoretical, as to the basis, systematic interpretation and purpose of the provision to be applied can improperly provide any a posteriori justification for the exercise of such discretionary power.
98 In light of the above considerations, I am of the opinion that the ground of appeal alleging infringement of the principle of the autonomy of the parties and of the principle of the protection of the rights of the defence should be dismissed as unfounded.
VI - Assessment of the appeal
99 As I have already noted, the error in the contested judgment consists in the fact that the Court of First Instance initially made a mistake in interpreting Decision 94/90 with respect to the Commission's obligations when applying the exception based on `the protection of the public interest (court proceedings)'.
Consequently, the Court of First Instance subsequently failed to ascertain as was necessary that those obligations had been met, by examining the grounds given for the Commission's contested refusal to allow access to the documents in question.
In particular, the Court of First Instance did not examine whether the Commission had taken all necessary and appropriate steps to obtain the opinion of the competent national courts and thereby minimise the need for the above exception to be applied.
The above error resulted in the contested judgment being based on defective grounds.
In reviewing the disputed act, the Court of First Instance did not provide adequate grounds in law for its finding that the Commission had applied the exception in question correctly - and therefore strictly.
The above defect in the contested judgment is likely to have a decisive effect on the operative part of the judgment.
If the Court of First Instance had duly carried out the relevant examination, it would probably have established that the Commission had not fulfilled its obligations, had not applied the exception in question strictly and therefore had not correctly explained the grounds for its refusal; in that case, the Court of First Instance would have been obliged to set aside the Commission's refusal.
For that reason, I propose that the Court set aside the contested judgment.
100 Once the contested judgment is set aside, the Court of First Instance, having regard to the information in the case-file, should consider whether the Commission actually took all necessary and appropriate steps to certain the opinion of the competent national courts regarding the question of the disclosure of the documents in question.
101 Since, therefore this case has not yet been settled on its merits, it should, pursuant to Article 54 of the EC Statute of the Court of Justice, be referred back to the Court of First Instance for judgment on the substance.
VII - Costs
102 Under the first paragraph of Article 122 of the Rules of Procedure of the Court of Justice, the Court is to make a decision as to costs `where the appeal is unfounded or where the appeal is well founded and the Court itself gives the final judgment in the case'.
Since, in the present case, neither of those situations applies, I propose that the Court reserve judgment as to costs.
VIII - Conclusion
103 In light of the above, I propose that the Court:
(1) set aside the judgment of the Court of First Instance of 19 March 1998 in Case T-83/96 van der Wal v Commission;
(2) refer the case back to the Court of First Instance of the European Communities for further judgment on the substance;
(3) reserve judgment as to costs.
(1) - T-83/96 [1998] ECR II-545.
(2) - OJ 1993 C 39, p. 6.
(3) - The terms of this declaration are as follows: `The Conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration.
The Conference accordingly recommends that the Commission submit to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions'.
(4) - OJ 1993 C 156, p. 5.
(5) - OJ 1993 C 166, p. 4.
(6) - OJ 1993 L 340, p. 41.
(7) - OJ 1994 L 46, p. 58.
(8) - OJ 1994 C 67, p. 5.
(9) - Cited above in footnote 3.
(10) - In particular, in that Notice, the Commission stated that:
`37. ... national courts may, within the limits of their national procedural law, ask the Commission and in particular its Directorate-General for Competition for the following information.
First, they may ask for information of a procedural nature to enable them to discover whether a certain case is pending before the Commission, whether a case has been the subject of a notification, whether the Commission has officially initiated a procedure or whether it has already taken a position through an official decision or through a comfort letter sent by its services.
If necessary, national courts may also ask the Commission to give an opinion as to how much time is likely to be required for granting or refusing individual exemption for notified agreements or practices, so as to be able to determine the conditions for any decision to suspend proceedings or whether interim measures need to be adopted.
The Commission, for its part, will endeavour to give priority to cases which are the subject of national proceedings suspended in this way, in particular when the outcome of a civil dispute depends on them.
38. Next, national courts may consult the Commission on points of law.
Where the application of Article 85(1) and Article 86 causes them particular difficulties, national courts may consult the Commission on its customary practice in relation to the Community law at issue.
As far as Articles 85 and 86 are concerned, these difficulties relate in particular to the conditions for applying these Articles as regards the effect on trade between Member States and as regards the extent to which the restriction of competition resulting from the practices specified in these provisions is appreciable.
In its replies, the Commission does not consider the merits of the case.
In addition, where they have doubts as to whether a contested agreement, decision or concerted practice is eligible for an individual exemption, they may ask the Commission to provide them with an interim opinion.
If the Commission says that the case in question is unlikely to qualify for an exemption, national courts will be able to waive a stay of proceedings and rule on the validity of the agreement, decision or concerted practice.
39. The answers given by the Commission are not binding on the courts which have requested them.
In its replies the Commission makes it clear that its view is not definitive and that the right for the national court to refer to the Court of Justice, pursuant to Article 177, is not affected.
Nevertheless, the Commission considers that it gives them useful guidance for resolving disputes.
40. Lastly, national courts can obtain information from the Commission regarding factual data: statistics, market studies and economic analyses.
The Commission will endeavour to communicate these data ... or will indicate the source from which they can be obtained'.
(11) - Cited above in footnote 3.
(12) - OJ 1983 L 173, p. 1.
(13) - OJ, English Special Edition 1959-1962, p. 129.
(14) - OJ 1985 L 15, p. 16.
(15) - This refers to Case T-105/95 WWF UK v Commission [1997] ECR II-313.
(16) - Cited above in footnote 3.
(17) - Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 14.
For the development of the case-law, see, inter alia, Case C-4/73 Nold v Commission [1974] ECR 491, paragraph 13; Case C-36/75 Rutili [1975] ECR 1219, paragraph 32; Case C-63/83 Kirk [1984] ECR 2689, paragraph 22; Case C-222/84 Johnston, cited above, paragraph 18; Case C-257/85 Dufay v Parliament [1987] ECR 1561, paragraph 10; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 17; and Case C-185/95 P Baustahlgewebe [1998] ECR I-8417, paragraphs 20 to 22.
(18) - Paragraph 46.
(19) - See also Baustahlgewebe (paragraph 21) cited above in footnote 18.
Moreover, as Advocate General Léger notes in his Opinion in that case `Article F(2) of the Treaty on European Union reaffirmed
the European Union's respect for the Convention, so that it is
now accepted that it is within the Court's remit to secure respect for the rights recognised by the Convention. It is clear from the Court's case-law that the Convention lays down
rules all of which are not merely safeguarded
in Community law by the Court. Those rules also guide the Court in formulating fundamental principles which are of the utmost importance in this area. It must also be observed that the constitutional traditions common to the Member States make a substantial contribution to the development of these fundamental principles.
Like those traditions, the Convention is the source which has inspired not only the fundamental rights, but also the other general principles of Community law' (points 25 to 28).
(20) - See the Opinion of Advocate General Pergola in Kremzow (point 6) cited above in footnote 18.
(21) - See Baustahlgewebe (paragraph 29) cited above in footnote 18.
(22) - Paragraph 48 of the contested judgment.
Emphasis added.
(23) - Paragraph 47 of the contested judgment.
(24) - See, for instance, European Court of Human Rights Stran Greek Refineries and Stratis Abdreadis [1994] Series A, No 301-B, paragraphs 49 and 50.
See also, inter alia, from the theoretical point of view, Tulkens, F., `La notion européenne de tribunal indépendant et impartial. La situation en Belgique', Revue de science criminelle et de droit pénal comparé, 1990, p. 667 and, in particular, page 680.
(25) - See, for instance, European Court of Human Rights Sramek [1984] Series A, No 84 (paragraph 42); Belilos [1988] Series A, No 132, paragraphs 66 and 67; and Langborger [1989] Series A, No 155, paragraph 32.
See also, inter alia, from the theoretical point of view, Macdonald, R. St. J., Matscher, F., and Petzold, H., (edited by), The European System for the Protection of Human Rights, Martinus Nijhoff Publishers, Dordrecht - Boston - London, 1993, p. 397.
(26) - At this point, it should be noted that the connection between procedural autonomy and judicial independence also constitutes an institutional guarantee for the protection of the parties' interests (see above, paragraph 34 of this Opinion).
That interweaving of the safeguarding of the individual interests of the parties with the protection of procedural autonomy and judicial independence is linked to the establishment of a general principle which could be referred to as the principle of the inviolability of
`the particular space' - after the example of the inviolability of private life - wherein judicial proceedings take place.
The Court of First Instance made a similar ruling in Case T-174/95 Svenska Journalistförbundet [1998] ECR II-2289, paragraphs 135 and 136, holding that: `Under the rules which govern procedure in cases before the Court of First Instance, parties are entitled to protection against the misuse of pleadings and evidence.
Thus, in accordance with the third subparagraph of Article 5(3) of the Instructions to the Registrar of 3 March 1994 (OJ 1994 L 78, p. 32), no third party, private or public, may have access to the case-file or to the procedural documents without the express authorisation of the President, after the parties have been heard. Moreover, in accordance with Article 116(2) of the Rules of Procedure, the President may exclude secret or confidential documents from those furnished to an intervener in a case. These provisions reflect a general principle in the due administration of justice according to which parties have the right to defend their interests free from all external influences and particularly from influences on the part of members of the public' (emphasis added).
(27) - The Kingdom of the Netherlands, one of the appellants, refers specifically to the major premise formulated in paragraphs 41 to 43 of the contested judgment.
(28) - As already noted, the first ground of appeal is common to both the parallel joined appeals.
For practical reasons, I will base myself on the systematic presentation of that ground of appeal submitted by the Kingdom of the Netherlands (Case C-174/89 P) noting, where necessary, the submissions and arguments raised in Mr van der Wal's appeal (Case C-189/98 P).
(29) - The Kingdom of the Netherlands refers specifically to Cases 33/76 Rewe [1976] ECR 1989, paragraph 5; C-45/76 Comet [1976] ECR 2043, paragraphs 12 to 16; C-68/79 Just [1980] ECR 501, paragraph 25; C-199/82 San Giorgio [1983] ECR 3595; C-331/85, C-376/85 and C-378/85 Bianco and Girard [1988] ECR 1099, paragraph 12; C-104/86 Commission v Italy [1988] ECR 1799, paragraph 7; C-123/87 and C-330/87 Jeunehomme and EGI [1988] ECR 4517, paragraph 17; C-96/91 Commission v Spain [1992] ECR I-3789, paragraph 12; C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 12; C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12; C-430/93 and C-431/93 Van Schijndel and Van Veen [1995] ECR I-4705, paragraph 17; C-212/94 FMC and Others [1996] ECR I-389, paragraph 71; and C-188/95 Fantask and Others [1997] ECR I-6783.
(30) - The Kingdom of the Netherlands refers specifically to paragraph 48 of the contested judgment.
(31) - The appellant refers to paragraph 50 of the contested judgment.
(32) - The appellant refers to paragraph 51 of the contested judgment.
(33) - Cited above in footnote 30.
(34) - See, in particular, Cases C-127/83 BRT [1974] ECR 51; C- 60/92 Otto [1993] ECR I-5683 and C-234/89 Delimitis [1991] ECR I-935.
(35) - See below, point 50 of this Opinion.
(36) - The Commission refers to paragraph 47 of the contested judgment.
(37) - The Commission refers to paragraphs 25 and 26 of the appeal.
(38) - See Case C-26/94 P X v Commission [1994] ECR I-4379, paragraphs 11 and 12. See also Case C-303/96 P Bernardi v Parliament [1997] ECR I-1239, paragraph 37, and the references cited therein.
(39) - At this point, it should be noted that, at the time material to the present case, namely before the entry into force of the Treaty of Amsterdam, Decision 94/90 constituted the regulatory basis conferring the right of public access to Commission documents.
As may be inferred from the Court's case-law, Decision 94/90 was the Commission's response to the European Council's demands for Community law to reflect the right of citizens, recognised by the majority of Member States' legislatures, to have access to documents in the possession of
public authorities.
Since the Community legislature had not adopted any general regulation on the right of public access to documents in the possession of the Community institutions, those institutions were obliged to take, by virtue of their power of internal organisation, appropriate measures to process - and satisfy - requests for access to documents in conformity with the interests of sound administration (see Case C-58/94 Netherlands v Council [1996] ECR I-2169, paragraphs 34 to 37 relating to Council Decision 93/731/EC of 20 December 1993 on public access to Council documents (OJ 1993 L
340, p. 43)).
(40) - As regards the obligation to examine each document separately, see also Communication 94/C 67/03 cited above, point 7 of this Opinion.
(41) - On questions raised by the discrepancies between the language versions of this major premise, see below, footnote 63.
(42) - See, for instance, REWE (paragraph 5) and Fantask (paragraph 39) cited above in footnote 30.
(43) - See paragraph 47 (emphasis added).
(44) - Paragraphs 47 and 48.
(45) - See above, point 36 of this Opinion.
(46) - See above, point 34 of this Opinion.
(47) - See above, point 36 of this Opinion.
(48) - As regards such an extension, see Article 3(2) of Council Directive 90/313/EEC of 7 June 1990 on the freedom of
access to information on the environment (OJ 1990 L 158, p. 56). This provides as follows: `Member States may provide for a request for such information to be refused where it affects: ... matters which are, or have been, sub judice ...'.
(49) - See above, point 36 of this Opinion.
(50) - According to the Kingdom of the Netherlands, having noted the views of the national court,
the Commission must independently consider whether the refusal to allow access can be justified on the grounds of the public interest (see, on this point, its statement in intervention submitted at first instance, paragraph 42).
I consider that that position is not correct because acceptance of the Commission's independence to decide in
such manner would be contrary to the principle of the procedural autonomy of the national court.
In my opinion, the Commission should be bound by the reply of the national court.
(51) - See below, point 77 of this Opinion.
(52) - See also below, point 92 of this Opinion.
(53) - On the connection between the right of access to Community institution documents and the principle of sound administration, see Netherlands v Council (paragraph 37), cited above in footnote 40.
(54) - This omission may have a crucial effect on the operative part of the judgment.
If
the Court of First Instance had undertaken that examination, it may have realised that the Commission had not complied with its relevant obligations with regard to the grounds for its refusal; in that case, the Court of First Instance would have been obliged to rule the Commission's decision invalid.
See below, point 99 of this Opinion.
(55) - In this context, Mr van der Wal observes that, in relation to Decision 94/90, the Court of First Instance should have noted that the Commission failed to give the reason why access was denied in the case of each contested document, having regard to the information contained therein, regarded as essential in paragraph 43 of the contested judgment.
(56) - In this context, Mr van der Wal notes that, insofar as the Court of First Instance's assessment means that the requirement of a `justification for each document' may be construed as a `justification for each category of documents', that position is incompatible with the previous case-law of the Court of First Instance which consistently held that the exceptions invoked by the Commission and the obligation incumbent on it to justify those exceptions must be strictly construed.
(57) - See below, point 68 of this Opinion.
(58) - See below, point 69 of this Opinion.
(59) - See above, point 50 of this Opinion.
(60) - See, for instance, Bernardi v Parliament (paragraph 39) and Baustahlgewebe (paragraph 113) cited above in footnotes 39 and 18 respectively.
(61) - See paragraphs 50 to 53 of the contested judgment.
(62) - The Kingdom of the Netherlands notes that, in the major premise of the reasoning adopted in the contested judgment (paragraph 43), the Court of First Instance admits that the Commission must consider in respect of each document requested whether, in the light of the information contained therein, disclosure is in fact likely to undermine one of the facets of public interest protected. With regard to that observation, it is worth noting that although in some language versions there is reference to information at the disposal of the Commission (in Greek: `åíüøåé ôùí ðëçñïöïñéþí ðïõ äéáèÝôåé'; in French: `au regard des informations dont elle dispose') or information to which the Commission has access (in English: `in the light of the information available to it'), in accordance with the Dutch text (Dutch is the language of the proceedings) the Court of First Instance refers in paragraph 43 of the contested judgment to the information contained in the contested document (`wegens de informatie die het bevat').
I consider that, with a view to deciding on the merits of the argument presented by the Kingdom of the Netherlands in relation to the mistaken choice of criterion for applying the exception in question, any effort to explain the discrepancies between the language versions and to select one of them would be fruitless.
As I have already noted, pursuant to Decision 94/90, the fundamental criterion is the assessment of the likely consequences of the act of disclosure.
Any a priori attempt, for every case, to give a more precise definition of that criterion by way of reference solely to information contained in the document, or solely to information at the Commission's disposal, or solely to information to which the Commission has access, would be needless because, in practice, depending on the circumstances of each case, the Commission is required to have recourse to every necessary step in making the relevant assessment including, possibly, considering all three categories of information.
As regards the possibility, given the above discrepancies between the language versions, of questioning the validity of the grounds of the contested judgment (contradiction between the major and minor premises in the Court of First Instance's reasoning), I consider that any attempt to select between the different versions is also fruitless.
Since, on the particular question of the Commission's abovementioned assessment, the conclusion arrived at by the particular line of reasoning in the contested judgment could be correct on the basis of other grounds in law - specifically, application of the general criterion in respect of the assessment of the act of disclosure, specified ad hoc by the criterion of recourse to information to which the Commission normally has access -
the possible argument concerning the existence of contradictory grounds must be rejected. See also below, point 91 of this Opinion.
(63) - As regards the mandatory nature of the specific category of exceptions, see above, point 51 of this Opinion.
(64) - See above, point 58 of this Opinion.
(65) - As regards the obligation to construe the exceptions to Decision 94/90 strictly, as referred to in paragraph 41 of the contested judgment itself, see above, point 51 of this Opinion.
(66) - See BRT, Otto and Delimitis cited in above in footnote 35.
(67) - Cited above in footnote 3.
(68) - See, for instance, Delimitis, paragraph 53, cited above in footnote 35.
(69) - See paragraph 41 of the contested judgment.
(70) - By way of analogy, see the judgment of the European Court of Human Rights in Gaskin [1989] Series A, No 160. That case, which differs in many respects from the case under consideration, concerned Mr Gaskin who, after the death of his mother, was left in local authority care until the age of eighteen.
During that time he lived with various foster parents and the local authorities had compiled a confidential case record on him. Mr Gaskin maintained that he had been ill-treated while in care.
As soon as he reached eighteen, he tried to find out where, with whom and under what conditions he had lived in order to overcome his problems and learn about his past.
The European Court of Human Rights considered (paragraph 49) that persons the situation of Mr Gaskin have a vital interest in receiving the information necessary to know and to understand their childhood.
It also considered that confidentiality of public records was of importance for receiving objective and reliable information and for protecting third persons.
In that context, it ruled that the United Kingdom had a breached Article 8 of the ECHR on the grounds that it denied Mr Gaskin access to documents concerning his childhood without making the necessary attempt to obtain the assent of persons protected by the confidential nature of the documents and without instructing an independent body to take the final decision should the above persons not reply or withhold their consent.
(71) - It is worth noting that the Commission could not be required to provide information not in its possession or create new information for disclosure to interested parties requesting it.
By way of analogy, see the judgment of the European Court of Human Rights in Guerra [1998], paragraph 53 in which it held that freedom to receive information could not be construed as imposing on a State positive obligations to collect and disseminate, information of its own motion.
However, when, by addressing questions to the competent national courts, the Commission seeks their opinion, it is not obliged, in the material case, to create or obtain the information requested.
That information is in its possession.
What it is required to do is have recourse, as far as possible, to all the information to which it may have access in order to minimise the need to rely on the exception in question.
(72) - See below, point 99 of this Opinion.
(73) - See above, points 59 and 77 of this Opinion.
(74) - On the limits of the procedural autonomy of the Member States, see, for instance, Van Schijndel and Van Veen
paragraph 17 cited above in footnote 30.
(75) - See, for instance, the Opinion of Advocate General Jacobs in Joined Cases Van Schijndel and Van Veen (cited above in footnote 30): `A degree of disparity in the application of Community law is however inevitable in the absence of harmonised rules on remedies, procedure and time-limits' (point 45).
(76) - See paragraph 11 of the appeal.
See also above, point 40 of this Opinion.
(77) - The appellant refers to paragraphs 47 and 48 of the contested judgment.
(78) - The appellant refers to paragraph 47 of the contested judgment.
(79) - The appellant refers to paragraph 51 of the contested judgment.
(80) - See, inter alia, Baustahlgewebe, paragraph 25, cited above in footnote 18.
(81) - See above on the first and second grounds of appeal.
(82) - See, for instance, Case C-294/95 Ojha v Commission [1996] ECR I-5863, paragraph 52.
(83) - See above, this Opinion on the first and second grounds of appeal (first limb).
(84) - See paragraph 48 of the contested judgment.
(85) - See paragraph 49 of the contested judgment.
(86) - See above, points 55 and 56 of this Opinion.
(87) - According to the Court's case-law, when one of the grounds is adequate to support the operative part of the Court of First Instance's judgment,
the defects that other grounds also included in that judgment may contain do not, in any event, affect the operative part of the judgment in question and the plea relied on by the applicant must be dismissed.
See, for instance, Case C-35/92 P Parliament v Frederiksen [1993] ECR I-991, paragraph 31.
(88) - See above, points 71 to 74 of this Opinion.
(89) - As regards the discrepancies between the different language versions, see above, footnote 63 of this Opinion.
(90) - See the abovementioned relevant case-law, point 89 of this Opinion.
(91) - See paragraph 41 of the contested judgment.
(92) - See, in particular, paragraphs 51, 53 and 71 of the contested judgment.
(93) - See paragraphs 25 to 33 of the contested judgment.
(94) - The appellant refers to paragraph 45 of the contested judgment.
(95) - The appellant refers to paragraphs 25 to 40 of the contested judgment.
(96) - See paragraphs 25 to 33 of the contested judgment.
(97) - On this subject, see Case C-252/96 P Parliament v Gutiérrez de Quijano y Lloréns [1998] ECR I-7421, paragraphs 32 to 34.
(98) - At this point, it is worth noting the Opinion of Advocate General Léger in Case C-252/96 P Parliament v Gutiérrez de Quijano y Lloréns (paragraphs 35 to 37) cited above in footnote 98: `Clearly the court must only rule on the application of the parties.
As I have pointed out, it is for them to define the framework of their dispute, and the court cannot, as a matter of principle, rule on matters other than the claims made, nor, of course, rule in complete disregard of the dispute as defined in the application initiating proceedings.
Nevertheless, the role of the court is not a passive one and it cannot be expected to be merely "the mouthpiece of the parties".
Its task of juris dictio requires it to be able to apply to the facts put before it by the parties the relevant rules of law for the solution of the dispute.
It cannot confine itself to the arguments put forward by the parties in support of their claims, or it may be forced to base its decision on erroneous legal considerations.
This is why the rules of procedure offer the court the possibility of seeking the best possible solution in various ways while remaining within the framework of the dispute submitted to it'.
(99) - As mentioned in paragraph 68 of the contested judgment, the above explanation, despite the different wording,
is essentially repeated in both replies (the letters of 23 February 1996 and 29 March 1996) addressed to Mr van der Wal.
(100) - On this subject, see above, point 51 of this Opinion.