JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
8 February 2018 (*)
(Access to documents — Regulation (EC) No 1049/2001 — Documents concerning an application for the registration of a name under Regulation (EU) No 1151/2012 — Documents originating from the Commission — Documents originating from a Member State — Article 4(5) of Regulation No 1049/2001 — Refusal to grant access — Obligation to state reasons — Exception relating to the protection of the decision-making process — Exception relating to the protection of court proceedings — Extent of review by the institution and the EU Courts of the Member State’s grounds for objection)
In Case T‑74/16,
Pagkyprios organismos ageladotrofon (POA) Dimosia Ltd, established in Latsia (Cyprus), represented by N. Korogiannakis, lawyer,
applicant,
v
European Commission, represented by J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents,
defendant,
ACTION brought under Article 263 TFEU, seeking annulment of the decision Ares(2015) 5632670 of the Secretary-General of the Commission of 7 December 2015 rejecting the confirmatory application made by letter of 15 September 2015, in which the applicant sought, pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), access to documents relating, first, to the application for registration CY/PDO/0005/01243 of ‘Halloumi’ as a protected designation of origin (PDO), in accordance with Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1), and, second, to the earlier application for registration CY/PDO/0005/00766 of ‘Halloumi’ as a PDO,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, L. Madise, Rapporteur, and R. da Silva Passos, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1        The applicant, Pagkyprios organismos ageladotrofon (POA) Dimosia Ltd, is an organisation of cattle farmers producing cow’s milk and meat. It is the main Cypriot producer of cow’s milk used in the production of halloumi cheese, a cheese of Cypriot origin.
2        On 3 July 2015, the applicant applied, in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), for access to:
-      any question or series of questions addressed by the European Commission, after the submission of the initial application for the registration of ‘Halloumi’ as a protected designation of origin (PDO), to the organisation of producers or to the Republic of Cyprus, in the context of the applications for registration Nos CY/PDO/0005/01243 and CY/PDO/0005/00766, the latter being subsequently withdrawn;
-      any answers or series of answers submitted by the organisation of producers which applied for registration of the name ‘Halloumi’ as a PDO or by the Republic of Cyprus in the context of the two applications for registration referred to above;
-      all the relevant correspondence between the Commission and the organisation of producers, which applied for registration of the name ‘Halloumi’ as a PDO, or the Republic of Cyprus;
-      any document concerning the observations or objections submitted by third parties in the context of the two applications for registration referred to above, sent by the Cypriot authorities to the Commission.
3        By letter of 26 August 2015, the Deputy Director-General of the Directorate General (DG) for Agriculture and Rural Development (‘DG Agriculture’) stated that he had identified 27 documents relating to the application, 15 of which originate from the Commission and 12 from the Cypriot authorities. As regards the documents from the Commission, he noted that some parts of those documents — that is to say, documents Nos 6, 7, 14 and 21 — had been ‘blackened’, since they referred to a decision which had not yet been taken by the Commission, for the purposes of the first subparagraph of Article 4(3) of Regulation No 1049/2001, and that certain documents contained personal data, within the meaning of Article 4(1)(b) of Regulation No 1049/2001, meaning that the need to disclose them had not been established. As regards the 12 documents issued by the Cypriot authorities, the Deputy Director-General of DG Agriculture stated that he had consulted those authorities and that they were opposed to their disclosure on the basis of the exceptions laid down in Article 4 of Regulation No 1049/2001. He indicated, inter alia, in essence, that the Cypriot authorities considered that the documents requested contained sensitive business information, related to court proceedings and to a decision that the Commission had not yet taken, the Cypriot authorities relying in that regard on the exceptions provided for in the first and second indents of Article 4(2), and Article 4(3), respectively, of Regulation No 1049/2001. Accordingly, the Deputy Director-General of DG Agriculture granted partial access to 15 documents — that is to say documents Nos 1, 5 to 7, 9, 11, 13, 14, 16, 19 to 21, 23, 25 and 27.
4        On 15 September 2015, in accordance with Article 7(2) of Regulation No 1049/2001, the applicant submitted to the Commission a confirmatory application seeking a review of the position adopted in the letter of 26 August 2015.
5        On 7 December 2015, the Secretary-General of the Commission adopted decision Ares(2015) 5632670 (‘the contested decision’).
6        As regards the documents originating from the Cypriot authorities, the Secretary-General of the Commission stated that, in accordance with Article 4(4) and (5) of Regulation No 1049/2001, the Commission had asked the Cypriot authorities to reconsider their position, following the applicant’s confirmatory application, and that they had agreed to grant full access to documents Nos 3, 8, 12 and 15 and partial access to documents Nos 2, 17, 18 and 22, but that they refused to grant access to documents Nos 4, 10, 24 and 26. The Secretary-General of the Commission set out the reasons given by the Cypriot authorities for their refusal. He noted that the Cypriot authorities, after being consulted by the Commission on the basis of Article 4(4) and (5) of Regulation No 1049/2001, had based their objection to the disclosure of the documents or parts of the documents on the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001, in particular those relating to the protection of court proceedings and ongoing decision-making processes, and that they had given adequate reasons for their position. In so doing, the Secretary-General of the Commission stated that those arguments, prima facie, justified the application of the exceptions laid down in Article 4 of Regulation No 1049/2001, as invoked by the Cypriot authorities, and that, consequently, the abovementioned documents should not be disclosed.
7        As regards the documents originating from the Commission, the Secretary-General indicated that some withheld parts of documents Nos 1, 5, 6 (cover letter), 7 (cover letter), 9, 11, 13, 19, 20 (cover email), 23 (cover email), 25 and 27 covered only personal data, the removal of which was not contested by the applicant in the confirmatory application. As regards the other documents and redacted data, the Secretary-General of the Commission informed the applicant that wide partial access was granted for documents Nos 6, 7 and 14 and full access for documents Nos 25 and 27. As regards documents Nos 14, 20 (annex), 21 and 23 (annex), the Secretary-General of the Commission confirmed that the redacted parts were fully covered by the exceptions laid down in Article 4(1)(b), the first indent of Article 4(2), and the first subparagraph of Article 4(3) of Regulation No 1049/2001. In that regard, he set out the reasons why disclosure of those documents entailed risks, in the light of the first indent of Article 4(2), and the first subparagraph of Article 4(3) of Regulation No 1049/2001. He noted, in particular, that, as long as the Commission’s decision-making process has not been finalised, the public disclosure of questions, comments and preliminary views of the Commission relating to a pending procedure would entail a foreseeable and specific risk of putting the decision-making process under external pressure, reducing the Commission’s room for manoeuvre and thus seriously undermining the quality of the decision to be taken. The Secretary-General of the Commission stated, lastly, that the applicant had not demonstrated any overriding public interest capable of prevailing over the first indent of Article 4(2) and the first subparagraph of Article 4(3) of Regulation No 1049/2001 and of justifying the disclosure of the documents requested. He therefore concluded that no additional access to documents Nos 14, 20 (annex), 21 and 23 (annex) could be granted.
Procedure and forms of order sought
8        By application lodged at the Court Registry on 17 February 2016, the applicant brought the present action.
9        By document of 24 May 2016, the Commission lodged a defence.
10      By document of 18 July 2016, the applicant lodged a reply.
11      By letter of 5 September 2016, the Commission waived its right to lodge a rejoinder.
12      The General Court (Ninth Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to rule on the action without an oral part of the procedure.
13      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
14      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
15      The applicant, challenging the Commission’s refusal to grant access to documents, raises five pleas in law, alleging, in essence, (i) infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001 in the absence of an ongoing decision-making process for the purposes of that provision; (ii) breach of the obligation to state reasons in the application of the first subparagraph of Article 4(3) of Regulation No 1049/2001; (iii) infringement of the second indent of Article 4(2) of Regulation No 1049/2001; (iv) infringement of the right to an effective remedy; and (v) infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001, to the extent that a Member State could not rely on that provision ‘if the decision which could be undermined is that of an EU institution’.
16      First of all, it is apparent from the application that the first two pleas in law seek, in essence, to challenge the merely partial access granted in respect of documents Nos 14, 17, 18, 20 (annex), 21, 22 and 23 (annex) and the refusal to grant access to documents Nos 4, 10, 24 and 26. The third and fifth pleas in law, for their part, seek to challenge the partial access granted in respect of documents Nos 17, 18 and 22 and the refusal to grant access to documents Nos 4, 10, 24 and 26, as does the fourth plea in law, with regard to the latter documents.
17      It is appropriate to consider, first, the first plea in law, alleging infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001, in the absence of any ongoing decision-making process for the purposes of that provision; second, the fifth plea in law, alleging infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001, in so far as a Member State may not rely on that provision; third, the second and fourth pleas in law alleging infringement of the obligation to state reasons in the application of the first subparagraph of Article 4(3) of Regulation No 1049/2001 and infringement of the right to an effective remedy, and, fourth and lastly, the third plea in law, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001.
The first plea in law, alleging a manifest error of assessment in applying the first subparagraph of Article 4(3) of Regulation No 1049/2001, by justifying the refusal of access to documents by an ‘ongoing decision-making process’
18      The applicant contests the exception relied on by the Commission and the Cypriot authorities that there is an ongoing decision-making process relating to the registration procedure for ‘Halloumi’ as a PDO, in accordance with Article 52 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1). The applicant claims that it follows from Article 50 of Regulation No 1151/2012 that a decision is adopted by the Commission once it has completed its scrutiny of an application for registration as a PDO. In the present case, that examination is attested by publication in the Official Journal of the European Union of 28 July 2015, which has binding effects. Those effects are independent of the parallel procedural effects consisting of the opening of the opposition procedure at EU level provided for in Article 51 of Regulation No 1151/2012. Thus, the publication in the Official Journal of the European Union of 28 July 2015 of application CY/PDO/0005/01243 concerning the registration of ‘Halloumi’ as a PDO, far from being ‘an intermediate measure’, constitutes a ‘decision’ for the purposes of Article 263 TFEU, in so far as that publication gives rise to rights and obligations in respect of third parties, in accordance with the case-law.
19      The Commission maintains that that plea in law is manifestly unfounded.
20      Under the first subparagraph of Article 4(3) of Regulation No 1049/2001, access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, is to be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
21      In the present case, first, it is apparent from the contested decision that the decision-making process protection of which is relied on by the Commission concerns the second stage of the registration procedure, namely the ‘opposition procedure’ provided for in Article 51 of Regulation No 1151/2012, and not the first stage of that procedure, namely ‘scrutiny by the Commission and publication for opposition’ provided for in Article 50 of Regulation No 1151/2012, referred to by the applicant in its pleadings.
22      Second, it must be noted that the applicant does not dispute that the opposition procedure laid down in Article 51 of Regulation No 1151/2012 was still ongoing at the time when the contested decision was adopted, or explain why that procedure cannot be considered, in the present case, to be ‘a decision-making process’ within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
23      Third, under Article 50(2) of Regulation No 1151/2012, the decision in respect of ‘publication for opposition’ referred to in that article is intended, as its title indicates, to open the opposition procedure laid down in Article 51 of Regulation No 1151/2012 and, thus to prepare the ‘decision on registration’ referred to in Article 52 of that regulation, which constitutes the final decision. In that regard, it must be noted that the Court has previously held that the decision on ‘publication for opposition’ referred to in Article 50(2) of Regulation No 1151/2012 was preparatory in relation to the ‘decision on registration’, so that only the latter decision was capable of producing legal effects such as to affect the interests of the applicant and, consequently, of being the subject of an action for annulment pursuant to Article 263 TFEU (see order of 14 September 2016, POA v Commission, T‑584/15, EU:T:2016:510, paragraphs 34 and 35 and the case-law cited).
24      Accordingly, the applicant’s arguments to the effect that, in essence, the stage of scrutiny by the Commission and publication for opposition — which is laid down in Article 50 of Regulation No 1151/2012 and which precedes registration — was closed by a decision which has effects that are binding and independent of the opening of the opposition procedure are not capable of demonstrating that the decision-making process in question was closed and thus of casting doubt on the existence of an ongoing decision-making process as regards the oppositions brought against the registration application.
25      Moreover, the applicant has not claimed that, in the present case, an overriding public interest justified the disclosure of the documents in question.
26      In those circumstances, the Court must reject the applicant’s arguments and the first plea in law.
The fifth plea in law, alleging an error of law in so far as a Member State cannot rely on the first subparagraph of Article 4(3) of Regulation No 1049/2001 if the ‘decision’ which could be undermined is that of an EU institution
27      The applicant claims, in support of the fifth plea in law, that the Commission failed to address an important point in its examination — in the present case the question whether the Cypriot authorities were entitled to rely on the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001 in order to refuse partial or full access to documents, when the alleged decision-making process which is claimed to have been undermined originates from an EU institution.
28      The applicant submits, in that regard, that, if the Commission had considered that it was clear that access should be refused on the basis of the exceptions laid down in Article 4 of Regulation No 1049/2001 and, more particularly, Article 4(3) of that regulation, in accordance with the judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802 paragraphs 46 and 68), it would have refused the applicant access without even having to consult the Cypriot authorities. In the present case, since the Commission identified 12 documents originating from the Cypriot authorities without objecting to their disclosure, the Cypriot authorities were not therefore entitled to object to the disclosure of those documents on the basis of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001 on the ground that it would undermine a decision-making process of a third authority, namely the Commission.
29      The Commission maintains that that plea in law is manifestly unfounded.
30      Under Article 4(5) of Regulation No 1049/2001 ‘[a] Member State may request the institution not to disclose a document originating from that Member State without its prior agreement’.
31      In the first place, at the outset, the applicant’s argument that the Cypriot authorities were not justified in objecting to the disclosure of the documents in question, since ‘in no document … [is any reference made to the Republic of] Cyprus having invoked Article 4(5) of Regulation No 1049/2001’ must be addressed.
32      In that regard, it should be noted that, even if it were established that none of the documents communicated to the applicant indicates that the Republic of Cyprus relied on Article 4(5) of Regulation No 1049/2001, that fact is, contrary to what the applicant submits, irrelevant.
33      It does not follow either from Article 4(5) of Regulation No 1049/2001 or from the case-law that, in order to be entitled to lodge an objection, a Member State, which is the author of the document at issue, must make a specific formal request in advance.
34      On the contrary, there is no indication in Article 4(5) of Regulation No 1049/2001, which, as is apparent from the judgments of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraphs 78 and 81), and of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission (C‑135/11 P, EU:C:2012:376, paragraph 53), is a procedural provision dealing with the process of adoption of an EU decision, that a Member State must submit a formal request, without which its objection may not be taken into account in the adoption of that decision.
35      Consequently, Article 4(5) of Regulation No 1049/2001 is indeed applicable in the present case.
36      In the second place, in so far as the applicant claims, principally, that a Member State may not rely on the first subparagraph of Article 4(3) of Regulation No 1049/2001 if the process being undermined is that of an EU institution, on the one hand, it must be noted that the exercise of the power conferred by Article 4(5) of Regulation No 1049/2001 on the Member State concerned is delimited by the substantive exceptions set out in Article 4(1) to (3). Article 4(5) of Regulation No 1049/2001 thus requires the Member State concerned to confine itself to the substantive exceptions laid down in Article 4(1) to (3) of that regulation (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraphs 76 and 83). Those substantive exceptions include the exception laid down in the first subparagraph of Article 4(3) which refers to an ongoing decision-making process of an EU institution, which is not contested by the applicant. Second, it does not follow from the wording of Article 4 of Regulation No 1049/2001 or from the case-law of the Court of Justice that the possibility for Member States to rely on those exceptions is limited to certain exceptions set out in paragraphs 1 to 3 of that article. On the contrary, it must be held that Article 4 of Regulation No 1049/2001 does not make any distinction between the exceptions listed with regard to whether Member States may rely on them.
37      In that regard, the Court has accepted that a Member State may rely on Article 4(3) of Regulation No 1049/2001 (judgments of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraphs 76, 81, 83 and 93, and of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraphs 62 to 66).
38      Accordingly, in the present case, there was nothing to prevent the Cypriot authorities from invoking the existence of an ongoing decision-making process, within the Commission, in accordance with the first subparagraph of Article 4(3) of Regulation No 1049/2001.
39      In the third place, that finding is not undermined by the applicant’s argument that, in accordance with the judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802), the Secretary-General of the Commission would have refused to disclose documents originating from the Republic of Cyprus without even having to consult the Cypriot authorities if he had considered that they were clearly covered by Article 4(3) of Regulation No 1049/2001.
40      As is apparent from paragraph 68 of the judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802), the power to refuse to disclose a document without even consulting the Member State from which it originates is available to the competent institution of the European Union only on the basis of Article 4(4) of Regulation No 1049/2001 which provides that ‘as regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed’.
41      Article 4(4) of Regulation No 1049/2001 concerns only the exceptions laid down in Article 4(1) and (2) of that regulation and not the exception laid down in the first subparagraph of Article 4(3). As the Commission maintains, the institutions cannot be required to consult third parties in order to assess whether their own decision-making processes are affected by the disclosure of a document. By contrast, there is nothing to prevent a Member State from relying on the first subparagraph of Article 4(3) of that regulation in order to object to the disclosure of a document originating from that Member State.
42      This is all the more true in a situation, such as the present, where the Member State is responsible for lodging the application for registration file and where, consequently, the undermining of the Commission’s decision-making process is capable of having a direct effect on the outcome of its application.
43      It follows that the fifth plea in law must be rejected.
The second and fourth pleas in law, alleging, respectively, infringement of the obligation to state reasons in the application of the first subparagraph of Article 4(3) of Regulation No 1049/2001 and infringement of the right to an effective remedy
44      The second and fourth pleas in law should be examined together, in so far as, by those pleas in law, the applicant criticises, in essence, the Commission for failing to provide sufficient information to justify the contested decision.
45      First, in support of the second plea in law, the applicant claims that, even if, as the Commission maintains, a ‘decision-making process’ was ongoing, for the purposes of the first subparagraph of Article 4(3) of Regulation No 1049/2001, the Commission has not explained, to the requisite legal standard, to what extent it would be ‘seriously’ undermined, within the meaning of that provision, in the event that the documents requested were disclosed.
46      The applicant submits, in that regard, that the Commission’s reasoning, on account of its general nature, does not demonstrate how the disclosure of the documents requested would seriously undermine the decision-making process, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001. In particular, it observes that, in accordance with the judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraph 66), any exception to the principle of transparency must be strictly interpreted and that the application of that principle requires an examination of the content of the document specifically concerned. Thus, the Commission cannot justify its assessment using abstract reasoning but must specifically address the content of the documents which constitute the subject matter of the request for access. In accordance with settled case-law, in order to justify a refusal to grant access to a document, it is not sufficient to show that the document concerned falls within the scope of an activity referred to in the first subparagraph of Article 4(3) of Regulation No 1049/2001.
47      In that regard, the applicant submits that, even though the Court of Justice has acknowledged that it is open to the EU institution concerned to base its decisions on general presumptions which apply to certain categories of documents, none of the cases in which the Court has accepted general presumptions corresponds to the present case. The Commission was therefore not entitled, on the basis of general reasoning, to refuse to grant access to the documents requested.
48      The applicant claims, inter alia, that document No 18, which the Cypriot authorities have refused to disclose, had already been submitted by the applicant in Case T‑584/15, relating to the registration of ‘Halloumi’ as a PDO, without any objection on the part of the Commission. However, a close examination of the above document shows that it contains no information capable of seriously undermining an ongoing decision-making process.
49      In conclusion, the failure of the Commission to notify the applicant of the reasons why disclosure would ‘seriously undermine’ the specific alleged decision-making process by referring to the subject-matter of each document constitutes an infringement of well-established case-law.
50      Second, in support of the fourth plea in law, the applicant submits that the failure to refer to the subject-matter of documents Nos 4, 10, 24 and 26 to which access was entirely refused by the Cypriot authorities deprives it of the right to an effective remedy. Mere references to ‘e-mails’, ‘letters’ and ‘annexes’ are an obstacle to the applicant’s identifying the importance of each document for the purposes of its defence and deprives it of the possibility of exercising that right.
51      In order to fulfil the requirement of the right to an effective remedy, which is a fundamental right recognised by Article 47 of the Charter of Fundamental Rights of the European Union, the authority in question must comply with its duty to give reasons by providing an adequate statement of reasons to any applicant who is denied full access to documents.
52      The Commission contends that the second plea in law is unfounded and that the fourth plea in law is manifestly unfounded.
53      It is settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measures in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 24 May 2011, NLG v Commission, T‑109/05 and T‑444/05, EU:T:2011:235, paragraph 81 and the case-law cited).
54      In the present case, it is necessary to examine the reasoning of the contested decision as regards, first, the documents originating from the Republic of Cyprus and, second, the documents originating from the Commission. As regards the documents originating from the Republic of Cyprus, it is also necessary to consider whether, as the applicant claims in support of its fourth plea in law, the alleged failure to refer to the subject-matter of documents Nos 4, 10, 24 and 26, to which the Cypriot authorities refused to grant access, deprives the applicant of its right to an effective remedy.
The documents originating from the Republic of Cyprus
55      It follows from the case-law regarding Article 4(5) of Regulation No 1049/2001 that, before refusing access to a document originating from a Member State, the institution concerned must examine whether that Member State has based its objection on the substantive exceptions in Article 4(1) to (3) of Regulation No 1049/2001 and has given proper reasons for its position. Consequently, when taking a decision to refuse access, the institution must make sure that those reasons exist and refer to them in the decision it makes at the end of the procedure (judgments of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 99; of 21 June 2012, IFAWInternationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 62; and of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 53).
56      As is apparent in particular from Articles 7 and 8 of Regulation No 1049/2001, the institution is itself obliged to give reasons for a decision refusing a request for access to a document. Such an obligation means that the institution must, in its decision, not merely record the fact that the Member State concerned has objected to disclosure of the document applied for, but also set out the reasons relied on by that Member State to show that one of the exceptions to the right of access provided for in Article 4(1) to (3) of the regulation applies. That information will enable the person who has asked for the document to understand the origin and grounds of the refusal of his request and the competent court to exercise, if need be, its power of review (judgments of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 89, and order of 27 March 2014, Ecologistas en Acción v Commission, T‑603/11, not published, EU:T:2014:182, paragraph 42).
57      On the other hand, according to the case-law regarding Article 4(5) of Regulation No 1049/2001, the institution to which a request for access to a document has been made does not have to carry out an exhaustive assessment of the Member State’s decision to object by conducting a review going beyond the verification of the mere existence of reasons referring to the exceptions in Article 4(1) to (3) of Regulation No 1049/2001 (judgment of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 63, order of 27 March 2014, Ecologistas en Acción v Commission, T‑603/11, not published, EU:T:2014:182, paragraph 44, and judgment of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 54). The institution must, however, check whether the explanations given by the Member State appear to it, prima facie, to be well founded (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 54).
58      To insist on such an exhaustive assessment could lead the institution to which a request for access to a document has been made, after carrying out the assessment, wrongly to communicate the document in question to the person requesting access, notwithstanding the objection, duly reasoned in accordance with paragraph 55 above, of the Member State from which the document originated (judgment of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 64; order of 27 March 2014, Ecologistas en Acción v Commission, T‑603/11, not published, EU:T:2014:182, paragraph 45, and judgment of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 55).
59      The reasoning of the contested decision as regards the documents originating from the Cypriot authorities should be examined in the light of that case-law.
60      First, in so far as the applicant calls into question the failure of the Secretary-General of the Commission to carry out an individual analysis of each document concerned in coming to the conclusion that the first subparagraph of Article 4(3) of Regulation No 1049/2001 is applicable, it must be noted that, contrary to what the applicant claims, the Secretary-General of the Commission was not required to carry out a specific and individual examination of the documents to which the Cypriot authorities refused to grant access.
61      The obligation to carry out a specific and individual examination which stems from the principle of transparency does not apply where the request for access concerns a document originating from a Member State, as referred to in Article 4(5) of Regulation No 1049/2001 (judgment of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 81).
62      Next, in so far as the applicant calls into question the exhaustive nature of the reasoning, it should be borne in mind, as indicated in paragraphs 55 and 61 above, that, when taking a decision to refuse access, the Commission must merely make sure that reasons exist which comply with the criteria referred to in those paragraphs and refer to them in the decision it makes at the end of the procedure.
63      In that regard, the Court has held, in response to arguments similar to those put forward by the applicant in the present case, that the institution to which a request for access to a document has been made does not have to carry out an exhaustive assessment of the Member State’s decision to object, by conducting a review going beyond the verification of the mere existence of reasons referring to the exceptions in Article 4(1) to (3) of Regulation No 1049/2001 (judgment of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 83).
64      In the present case, first, as regards the documents which the Cypriot authorities agreed to disclose in part, the Secretary-General of the Commission, in point 2.1.1.b) of the contested decision, cited the justification given by the Cypriot authorities, on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001, to the effect that: ‘The parts of the documents for which they objected [to] disclosure continue to be relevant and important for the pending ongoing application CY/PDO/[0]005/012[43], which is a continuation of withdrawn application CY/PDO/[0]005/…007[66]. Both applications are closely related, largely contain very similar elements and refer to the same product (Halloumi) … [P]ublic disclosure of [all or part of the] documents related closely to the withdrawn application would seriously undermine the ongoing decision-making process related to ongoing application CY/PDO/[0]005/01234 …’
65      Second, the Secretary-General of the Commission stated, in that point, in respect of documents Nos 17, 18 and 22, that, according to the Cypriot authorities, those documents were part of an ongoing decision-making process, for the purposes of the first subparagraph of Article 4(3) of Regulation No 1049/2001, and also indicated the same in respect of the documents access to which the Cypriot authorities refused entirely, namely documents Nos 4, 10, 24 and 26, stating that disclosure of those documents would seriously undermine the ongoing decision-making process of the Commission.
66      In those circumstances, in accordance with the case-law cited in paragraphs 55 to 58 above, the Secretary-General of the Commission examined whether the Republic of Cyprus had based its objection on the substantive exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001 and whether it had given proper reasons for its position in that regard, to which the Commission referred in the decision it made following that procedure in concluding that the explanations given by the Republic of Cyprus ‘prima facie justify the application of the exceptions in Article 4 of Regulation No 1049/2001 …’
67      It follows that the Commission acquitted itself of its obligation to conduct a diligent examination by complying, in doing so, with the level of intensity required by the Court in its case-law relating to Article 4(5) of Regulation No 1049/2001 and that it fulfilled its duty to state reasons (see, to that effect and by analogy, judgment of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 85).
68      Finally, in so far as the applicant claims, in support of the fourth plea in law, that the lack of a precise reference to the subject-matter of documents Nos 4, 10, 24 and 26, to which the Cypriot authorities refused any access, deprives it of its right to an effective remedy, first, it should be noted that, as the Commission submits, it produced two lists of documents in its initial reply of 26 August 2015, to which the applicant does not refer in the application.
69      Those lists identify, inter alia, documents Nos 4, 10, 24 and 26, giving the date, registration number, nature and subject-matter of each of those documents.
70      Second, as held in paragraph 67 above, the Secretary-General of the Commission gave sufficient reasons in law for his decision concerning the refusal to disclose the documents originating from the Cypriot authorities.
71      It follows that, as the Commission maintains, the information provided was sufficient for the applicant to exercise its right to effective judicial protection. It must be noted that it may be impossible to give reasons justifying the need for confidentiality in respect of each individual document without disclosing its content and, thereby, depriving the exception of its very purpose (see judgment of 24 May 2011, NLG v Commission, T‑109/05 and T‑444/05, EU:T:2011:235, paragraph 82 and the case-law cited).
72      In that regard, contrary to what the applicant claims, if, as in the present case, the Member State gives a properly reasoned refusal to allow access to the documents in question and, therefore, the institution concerned refuses the request for access, the person who has made the request does enjoy judicial protection.
73      It is within the jurisdiction of the EU courts to review, on application by a person to whom the institution has refused to grant access, whether that refusal could have been validly based on those exceptions, regardless of whether the refusal results from an assessment of those exceptions by the institution itself or by the Member State concerned (see judgment of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 72 and the case-law cited).
74      In those circumstances, the applicant may not, in the present case, validly claim that its right to an effective remedy has been infringed.
The documents originating from the Commission
75      In the case of a request for access to documents originating from an EU institution, that institution must, in principle, explain how access to those documents could specifically and effectively undermine the interest protected by an exception laid down in Article 4 of Regulation No 1049/2001. Moreover, the likelihood of that interest being compromised must be reasonably foreseeable and not purely hypothetical (see judgment of 26 April 2016, Strack v Commission, T‑221/08, EU:T:2016:242 paragraph 90 (not published) and the case-law cited). That concrete examination must, moreover, be carried out in respect of each document referred to in the request (judgment of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 70).
76      Where the institution in question refuses access to documents, it must demonstrate in each individual case, on the basis of the information at its disposal, that the documents to which access is sought do indeed fall within the exceptions listed in Regulation No 1049/2001. However, as stated in paragraph 71 above, it may be impossible to give reasons justifying the need for confidentiality in respect of each individual document without disclosing its content and, thereby, depriving the exception of its very purpose (see judgment of 24 May 2011, NLG v Commission, T‑109/05 and T‑444/05, EU:T:2011:235, paragraph 82 and the case-law cited).
77      Under that case-law, it is therefore for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the document requested does in fact fall within the sphere covered by the exception relied on and, second, whether the need for protection relating to that exception is genuine (judgment of 24 May 2011, NLG v Commission, T‑109/05 and T‑444/05, EU:T:2011:235, paragraph 83).
78      Accordingly, the statement of reasons for a decision refusing access to a document must therefore contain, for each category of documents concerned at least, the specific reasons why the institution in question considers that disclosure of the requested documents falls within the scope of one of the exceptions laid down by Regulation No 1049/2001 (judgment of 24 May 2011, NLG v Commission, T‑109/05 and T‑444/05, EU:T:2011:235, paragraph 84).
79      In the first place, it should be noted that, after stating its conclusions, in section 2 of the contested decision, as regards the documents at issue and, in particular, documents Nos 14, 20 (annex), 21 and 23 (annex), certain parts of which were redacted, the Secretary-General of the Commission gave detailed reasons, in that section, for the application of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001.
80      First, the Secretary-General of the Commission described the progress of the registration procedure. He stated that the Commission had received oppositions to the application for registration, in respect of which it was required, after deciding on their admissibility, to hold appropriate consultations, on the basis of Article 51(3) of Regulation No 1151/2012, then, when the consultations had been carried out, to take a decision on the registration, in accordance with Article 52 of that regulation, either by registering the name, if agreement was found, or by adopting implementing measures, if there was no such agreement. The Secretary-General of the Commission thus noted that the Commission’s decision as to whether or not to grant the application for registration was still pending and that, accordingly, the Commission’s decision-making process was still ongoing.
81      Second, the Secretary-General of the Commission explained that, although documents Nos 14, 20 (annex), 21 and 23 (annex) were drafted in the context of the withdrawn application CY/PDO/0005/00766, the redacted parts concerned issues under examination by the Commission in the context of ongoing application CY/PDO/0005/01243. Accordingly, their public disclosure would undermine the Commission’s decision-making process.
82      Third, the Secretary-General of the Commission observed that the questions and comments raised by the Commission within the framework of the examination of the withdrawn application remained very relevant to the ongoing application CY/PDO/0005/01243.
83      Fourth, the Secretary-General of the Commission noted that Regulation No 1151/2012 does not provide for the disclosure of questions or comments from the Commission during the examination procedure and that, on the contrary, persons with legitimate interests must exercise their rights by notifying their opposition to the application for registration, as published in the Official Journal of the European Union. The Secretary-General of the Commission also stated: ‘As long as the Commission’s decision-making process has not been finalised, disclosure, to the public, of the questions, comments and preliminary views of the Commission staff relating to the pending application would entail a reasonably foreseeable and specific risk of putting the Commission decision-making process under external pressure by organised interests … It would also jeopardise the fair running of the procedure which is entrusted to the Commission, as it would provide opponents with arguments to use in support of their opposition against the applicant.’
84      In the present case, the Secretary-General of the Commission therefore stated that the exception on which he based his refusal was relevant with regard to the redacted parts of documents Nos 14, 20 (annex), 21 and 23 (annex), since the redacted parts, which contained questions and comments raised by the Commission, concerned subjects under examination by the Commission, in the context of the ongoing application CY/PDO/0005/01243 and closely mirrored the documents or parts of the documents which the Cypriot authorities had refused to disclose publicly. He also gave the explanation, contained in paragraph 83 above, relating to the need for the protection relied on, stating that ‘such disclosure would harm the confidentiality of the ongoing examination of the application and, thereby, seriously undermine the ongoing decision-making process protected by [the first subparagraph of Article 4(3) of] Regulation No 1049/2001’.
85      The Secretary-General of the Commission therefore gave sufficient reasons for the contested decision to the requisite legal standard (see, to that effect, judgment of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 105).
86      In the second place, in so far as the applicant claims that, by failing to carry out an analysis of the content of each of the documents concerned and not explaining how each of those documents could specifically and effectively undermine the protected interest, the Secretary-General of the Commission infringed the principle of transparency, as interpreted by the case-law, first, it should be observed that, on page 7 of the contested decision, the Secretary-General of the Commission stated that ‘after analysing … documents [14, 20 (annex), 21 and 23 (annex)] [he] confirm[ed] that the withheld parts are fully covered by the exceptions [laid down in Regulation No] 1049/2001’. Second, on page 8 of the contested decision, the Secretary-General of the Commission described the content of the redacted parts of each of those documents, namely the Commission’s questions and comments regarding documents Nos 14 and 21 and the replies to those comments and questions as regards documents Nos 20 (annex) and 23 (annex). Accordingly, it may not be claimed that the Secretary-General of the Commission did not carry out a concrete, individual examination of the documents requested (see, to that effect, judgment of 20 March 2014, Reagens v Commission, T‑181/10, not published, EU:T:2014:139, paragraphs 72 and 73).
87      In the third place, in so far as the applicant maintains, in order to ‘illustrate’ the argument alleging that there was no concrete and effective analysis of the documents at issue, that it had previously lodged document No 18 as annex 5 in the context of proceedings pending before the Court in Case T‑584/15, without the Commission’s objecting to it, first, the production of a document before a Court of the European Union cannot be equated with a public disclosure for the purposes of Regulation No 1049/2001 and, second, the applicant’s access to that document was not obtained under that regulation. Furthermore, the Secretary-General of the Commission set out, as regards that document, the reasons justifying, according to the Cypriot authorities, the application of Article 4(5) of Regulation No 1049/2001, thereby providing adequate reasons for the refusal to grant the applicant access.
88      Accordingly, it must be held that the reasons given for the decision are sufficient in respect of the documents originating from the Commission.
89      In those circumstances, the second and fourth pleas in law must be rejected.
90      In that regard, given that, as is apparent from the foregoing, the application of the substantive exception referred to in the first subparagraph of Article 4(3) of Regulation No 1049/2001 is not unlawful as regards the documents originating from the Republic of Cyprus and, secondly, reliance upon a single exception is sufficient to justify a refusal to grant access (see, to that effect, judgment of 7 October 2015, Jurašinović v Council, T‑658/14, not published, EU:T:2015:766, paragraph 38 and the case-law cited, and of 15 September 2016, Philip Morris v Commission, T‑800/14, not published, EU:T:2016:486, paragraph 75), the third plea in law, alleging an error of law in the action on the part of the Cypriot authorities, must be rejected as ineffective.
91      However, the Court has examined that plea in law for the sake of completeness.
The third plea in law, alleging an infringement of the second indent of Article 4(2) of Regulation No 1049/2001
92      The applicant claims that the reasons given by the Cypriot authorities for refusing partial or full disclosure of documents Nos 4, 10, 17, 18, 22, 24 and 26, on the basis of the second indent of Article 4(2) of Regulation No 1049/2001, are inadequate. It maintains, in that regard, that the exception referred to in the second indent of Article 4(2) of Regulation No 1049/2001 was not invoked by the Commission.
93      The applicant maintains that, in accordance with the judgment of 21 September 2010, Sweden and Others v API and Commission (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 72), if the Commission decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected. In addition, according to the applicant, in accordance with the judgment of 3 October 2012, Jurašinović v Council (T‑63/10, EU:T:2012:516, paragraphs 66 and 67), the words ‘court proceedings’ must be interpreted as meaning that the protection of the public interest precludes the disclosure of the content of ‘documents drawn up solely for the purposes of specific court proceedings’. It adds that the Court held, in a judgment concerning the Commission (judgment of 6 July 2006, Franchetand Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 90) that that expression must be understood to mean, inter alia, the pleadings or documents lodged and internal documents concerning the investigation of the ongoing case. The Republic of Cyprus simply refers to a pending case, in national opposition proceedings, before the Anotato Dikastirio Kyprou (Supreme Court of Cyprus) without explaining how those national proceedings and the registration procedure before the Commission are so closely linked that disclosure of the requested documents would affect the national court proceedings.
94      The applicant refers again, in that regard, to document No 18. It claims that that document provides a thorough scientific analysis with references to academic published articles, which are easily accessible, and in no way reveals any correspondence between the Cypriot Authorities and the Commission which was drafted, in accordance with the case-law, ‘solely for the purposes of specific court proceedings’.
95      The Commission contests those arguments.
96      Under the second indent of Article 4(2) of Regulation No 1049/2001, ‘the institutions shall refuse access to a document where disclosure would undermine the protection of … court proceedings’.
97      In the first place, in so far as the applicant’s argument may be interpreted as challenging the reasoning of the contested decision, on the one hand, it should be noted that the Secretary-General of the Commission stated, as regards documents Nos 17, 18 and 22, that the Cypriot authorities had indicated that disclosure thereof in whole or in part ‘would … undermine the protection of the pending national court proceedings related to application CY/DPO/[0]005/[0]1243 [to the extent that] in the framework of the national opposition procedure, according to Article 49 of Regulation No 1151/2012, several oppositions received from natural or legal persons [were] still pending before the [Anotato Dikastirio Kyprou (Supreme Court of Cyprus)]’.
98      On the other hand, the Secretary-General of the Commission specified, in respect of each of documents Nos 17, 18 and 22 (to which partial access was granted) and in respect of documents Nos 4, 10, 24 and 26 (to which access was refused) that, according to the Cypriot authorities, those documents or parts of documents ‘closely relate[d] to issues under examination in the national pending court proceedings’ and that their disclosure would seriously harm the national court proceedings pending before the Anotato Dikastirio Kyprou (Supreme Court of Cyprus).
99      It follows that the contested decision, as regards the exception referred to in the second indent of Article 4(2) of Regulation No 1049/2001 is, in accordance with the case-law set out in paragraphs 55 to 58 above, sufficiently reasoned.
100    That finding is not undermined by the judgment of 21 September 2010, Sweden and Others v API and Commission (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 72), relied on by the applicant, to the effect that the Commission was required to ‘explain how disclosure [of the document in question] could specifically and effectively undermine the interest protected’. As was already stated in paragraph 61 above, the obligation to carry out a specific and individual examination which stems from the principle of transparency does not apply where the request for access concerns a document originating from a Member State, as referred to in Article 4(5) of Regulation No 1049/2001 (judgment of 25 September 2014, Spirlea v Commission, T‑669/11, EU:T:2014:814, paragraph 81).
101    In the second place, in so far as the applicant’s arguments may be interpreted as challenging the merits of the contested decision as regards the application of the second indent of Article 4(2) of Regulation No 1049/2001, it should be noted that the institution must carry out a prima facie review of whether the grounds for refusing the disclosure raised by the Member State concerned are well founded (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 58).
102    The applicant does not call into question the correctness of the grounds put forward by the Cypriot authorities, as set out in paragraphs 97 and 98 above, which refer to a link between the application for the registration of ‘Halloumi’ as a PDO at EU level with the proceedings before the Anotato Dikastirio Kyprou (Supreme Court of Cyprus) (see, to that effect, order of 27 March 2014, Ecologistas en Acción v Commission, T‑603/11, not published, EU:T:2014:182, paragraph 60).
103    In that regard, the grounds for relying on the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001 put forward by the Republic of Cyprus cannot be regarded as indefensible by the institution in question (see, to that effect and by analogy, judgment of 14 February 2012, Germany v Commission, T‑59/09, EU:T:2012:75, paragraphs 54 and 55).
104    It follows that the Secretary-General of the Commission was correct in considering that the arguments put forward by the Cypriot authorities justified, prima facie, the application of the second indent of Article 4(2) of Regulation No 1049/2001.
105    In the third place, that finding cannot be undermined by the applicant’s argument that, in essence, in accordance with the judgments of 6 July 2006, Franchet and Byk v Commission (T‑391/03 and T‑70/04, EU:T:2006:190), and of 3 October 2012, Jurašinović v Council (T‑63/10, EU:T:2012:516, paragraphs 66 and 67), the expression ‘court proceedings’ should be interpreted as excluding the documents referred to in paragraph 98 above from its scope.
106    On the one hand, the judgments to which the applicant refers concern situations in which the relevant documents originated from the Commission and not from a Member State. As regards documents originating from Member States, as indicated in paragraph 101 above, the Commission is obliged only to carry out a prima facie review of whether the grounds for the refusal of disclosure raised by the Member State concerned are well founded.
107    On the other hand, it should be noted that, in any event, the judgments cited by the applicant do not permit the documents concerned to be excluded from the scope of the second indent of Article 4(2) of Regulation No 1049/2001. In the judgment of 3 October 2012, Jurašinović v Council (T‑63/10, EU:T:2012:516, paragraph 76), the Court merely excluded from the protection of court proceedings referred to in the second indent of Article 4(2) of Regulation No 1049/2001 reports drawn up more than ten years before the beginning of the proceedings, since the Council of the European Union had not explained to the requisite legal standard the criteria or conditions by reference to which those documents could be protected by the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001. Similarly, in the judgment of 6 July 2006, Franchet and Byk v Commission (T‑391/03 and T‑70/04, EU:T:2006:190), the Court held, in paragraphs 96 and 97, that it was possible that the communication of various documents by the European Anti-Fraud Office (OLAF) to the national authorities, pursuant to Article 10(1) and (2) of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF (OJ 1999, L 136, p. 1), or to an institution, pursuant to Article 10(3) of that regulation, would not lead to the opening of judicial proceedings, with the result that it could not be found that the various documents sent by OLAF had been drawn up solely for the purposes of court proceedings.
108    It follows that the applicant’s third plea must be rejected and the action dismissed in its entirety, without there being any need to rule on the Commission’s argument that four of the five pleas in law should be rejected as manifestly unfounded, since the applicant does not contest the application to the documents referred to in those pleas in law of the first indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of commercial interests, or to examine the reasoning of the contested decision in that regard.
Costs
109    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
110    In the present case, although the applicant has been unsuccessful, it nevertheless requests that the Court order the Commission to pay its legal costs even in the event that the Court dismisses the action. In essence, the applicant claims that in the absence of any solid and well-founded argument in the decision to refuse access to the documents requested, the Commission left it no option but to bring a case before the Court.
111    Under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay costs which it has made the opposite party incur through its conduct, in particular where the Court holds those costs to be unreasonable or vexatious.
112    According to the case-law, that provision should be applied where the dispute is in part attributable to the conduct of an EU institution (see judgment of 8 July 2015, European Dynamics Luxembourg and Others v Commission, T‑536/11, EU:T:2015:476, paragraph 391 (not published) and the case-law cited).
113    In the present case, the examination of the Commission’s conduct in respect of the applicant does not warrant the Commission being ordered to pay the costs under Article 135(2) of the Rules of Procedure.
114    None of the infringements relied on by the applicant, either in terms of substantive legality or external legality, was upheld by the Court. Furthermore, there is nothing in the Commission’s conduct to permit the conclusion that the dispute is attributable to it.
115    In those circumstances, it must be held that the bringing of the present action by the applicant was not attributable to the Commission’s conduct (see, to that effect, judgment of 8 July 2015, European Dynamics Luxembourg and Others v Commission, T‑536/11, EU:T:2015:476, paragraph 394 and the case-law cited).
116    Consequently, under Article 134(1) of the Rules of Procedure, the applicant must be ordered to pay the costs in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Pagkyprios organismos ageladotrofon (POA) Dimosia Ltd to bear its own costs and to pay those incurred by the European Commission.
Gervasoni
Madise
Da Silva Passos
Delivered in open court in Luxembourg on 8 February 2018.
E. Coulon
S. Gervasoni
Registrar President
*      Language of the case: English.