ORDER OF THE GENERAL COURT (Sixth Chamber)
11 August 2023 (*)
(Action for annulment – Access to documents – Decision 2004/258/EC – Documents relating to exchanges between the ECB and a central bank – Refusal to grant access – Application for directions to be issued – Lack of jurisdiction – Individual act – Lack of standing to bring proceedings – Inadmissibility)
In Case T‑675/22,
James T. Flynn, residing in Dublin (Ireland), represented by E. Dornan, Barrister-at-Law, and K. Winters, Solicitor,
applicant,
v
European Central Bank (ECB), represented by A. Korb and M. Estrada Cañamares, acting as Agents, and by M. Kottmann, lawyer,
defendant,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira (Rapporteur), President, M. Kancheva and P. Zilgalvis, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
makes the following
Order
1        By his action under Article 263 TFEU, the applicant, Mr James T. Flynn, seeks, first, annulment of the decision of the European Central Bank (ECB) of 1 September 2022 refusing to grant access to documents relating to the correspondence between the European Central Bank and the Central Bank of Ireland (‘the contested decision’) and, second, that the General Court order the ECB to disclose the documents requested.
Background to the dispute and procedure
2        On 16 May 2022, the law firm KRW Law LLP made an application for access to documents, by means of the platform asktheeu.org, addressed to the ECB pursuant to Decision 2004/258/EC of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3) (OJ 2004 L 80, p. 42), as amended, most recently, by Decision (EU) 2015/529 of the European Central Bank of 21 January 2015 (OJ 2015 L 84, p. 64) (‘Decision 2004/258’). That initial application for access (‘the initial application’) was worded as follows:
‘Dear European Central Bank,
Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:
Please provide correspondences between the European Central Bank and the Central Bank of Ireland from 19 February 2019 to present in respect of Article 3 of the Decision of the European Central Bank of 19 April 2013, ECB/2013/10.
Yours faithfully,
KRW Law – Euro’
3        On 15 July 2022, the ECB responded to KRW Law, by means of the platform asktheeu.org, granting access to part of the requested documents.
4        By letter of 3 August 2022 addressed to the ECB, KRW Law brought a ‘confirmatory application for access to ECB documents’ (‘the confirmatory application’). The signatory of that letter was KRW Law, which bore the signature of an unidentified person. In the heading of that letter, there were three postal addresses, namely the office addresses of KRW Law in Belfast and in London (United Kingdom) and the address of JT Flynn & Co. Solicitors in Dublin (Ireland). The confirmatory application contained, in the annex thereto, a judgment of the Ard-Chúirt (High Court, Ireland) of 15 October 2020 delivered in an action between A and the Central Bank of Ireland involving damaged euro banknotes.
5        By the contested decision, addressed to Mr Colin McMenamin, solicitor at KRW Law, the ECB rejected the confirmatory application.
6        By application lodged at the Registry of the General Court on 31 October 2022, the applicant brought the present action.
7        By letters of 10 November 2022 and 6 January 2023, the Court Registry set the time limits for the applicant for the purpose of regularising the application.
8        By letter filed at the Court Registry on 17 January 2023, the applicant requested in particular that, in the case name, his name be changed to ‘James T. Flynn’ instead of ‘KRW Law LLP’.
9        On 31 January 2023, the application was served on the ECB.
10      On 5 April 2023, the ECB raised an objection of inadmissibility by separate document lodged at the Court Registry.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order the ECB to disclose in full the documents requested by him;
–        order the ECB to pay the costs.
12      The ECB contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
Law
13      Under Article 130(1) and (7) of the Rules of Procedure of the General Court, on the application of the defendant, the Court may decide on an objection of inadmissibility without going to the substance of the case. It should be specified in that regard that, contrary to what the applicant claims, the objection of inadmissibility was submitted by the ECB within the time period for lodging such an objection. It is apparent from the information in the file that, on the basis of the request to regularise the application, the application was served on the ECB on 31 January 2023 and that the ECB raised the objection of inadmissibility by separate document lodged at the Court Registry on 5 April 2023 (see paragraphs 6 to 10 above). The objection of inadmissibility was therefore lodged at the Court Registry within the two-month time limit laid down in Article 81(1) of the Rules of Procedure, extended on account of distance pursuant to Article 60 of those rules.
14      In the present case, as the ECB has, therefore, rightly applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.
15      The ECB has raised two pleas of inadmissibility, first, in relation to the first head of claim alleging the lack of standing to bring proceedings and, second, in relation to the second head of claim alleging the lack of jurisdiction of the Court. It is appropriate to begin by examining the second plea.
The plea of inadmissibility alleging lack of jurisdiction of the Court
16      The ECB contends that, by the second head of claim, the applicant is seeking that the Court instruct the ECB to disclose the requested documents, whereas the EU judicature cannot, in principal, issue directions to an EU institution.
17      The applicant maintains that the ECB’s argument is ‘difficult to comprehend’.
18      As regards the second head of claim, it should be noted that the applicant claims that the Court should direct the ECB to disclose the requested documents. However, it should be borne in mind that, when exercising judicial review of legality under Article 263 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the European Union (see order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited; see also, to that effect, judgment of 25 September 2018, Sweden v Commission, T‑260/16, EU:T:2018:597, paragraph 104 and the case-law cited).
19      It follows that the second head of claim must be rejected on the ground of lack of jurisdiction.
The plea of inadmissibility alleging the lack of standing to bring proceedings
20      The ECB contends that the first head of claim is inadmissible given the applicant’s lack of standing to bring proceedings, since it does not fall within the three situations provided for under the fourth paragraph of Article 263 TFEU. First, the applicant is not the addressee of the contested decision, second, the applicant is not individually concerned by that decision, and, third, the contested decision is not a regulatory act. The facts of the present case are, moreover, different from those giving rise to the judgment of 24 May 2011, NLG v Commission (T‑109/05 and T‑444/05, EU:T:2011:235), in which the Court permitted an applicant to challenge a decision addressed to its lawyer.
21      The applicant submits that the action is admissible. First, the applicant should be considered as the addressee of the contested decision, given that KRW Law acted as his legal representative, which is known by the ECB. In that regard, it follows from the confirmatory application that the office of KRW Law in Dublin (Ireland) is located at JT Flynn & Co. Solicitors. In addition, it follows from the wording of that letter that KRW Law requested access to documents regarding the procedures in which the applicant is a ‘suspect’. The fourth paragraph of Article 263 TFEU should be interpreted as including an act addressed to the legal representative of the person at issue. Moreover, in the judgment of 24 May 2011, NLG v Commission (T‑109/05 and T‑444/05, EU:T:2011:235), the Court already ‘authorised’ an applicant to challenge a decision addressed to its lawyer.
22      Second, the applicant submits that he is directly affected and individually concerned by the contested decision. In particular, he fulfils the criterion of being affected individually, given that the refusal to grant access to the documents, set out in the contested decision, affects a group of identified or identifiable persons, of which the applicant forms part, that group being capable of being identified from the same requested documents.
23      Under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person (first limb) or which is of direct and individual concern to them (second limb), and against a regulatory act which is of direct concern to them and does not entail implementing measures (final limb).
24      First of all, it should be noted that the applicant does not have standing to bring proceedings under the final limb of the fourth paragraph of Article 263 TFEU, which, moreover, he does not dispute. The contested decision is not a regulatory act, in so far as it does not have, by its nature, general application. On the other hand, the contested decision is an individual decision taken in relation to the applicant seeking access to documents (see paragraph 5 above).
25      Next, as regards the standing to bring proceedings under the first limb of the fourth paragraph of Article 263 TFEU, it should be noted that, contrary to what the applicant submits, he is not the addressee of the contested decision.
26      It should be noted that the person referred to in the contested decision as the addressee of that decision is KRW Law and not the applicant (see paragraph 5 above).
27      Moreover, as regards whether, during the pre-litigation procedure, KRW Law had acted on behalf of the applicant, it should be noted that such a representation does not follow from the administrative procedure which gave rise to the contested decision.
28      First, the initial application was submitted by KRW Law, on its own behalf, and not as a representative of a client or another person, which follows clearly from its wording (see paragraph 2 above).
29      Second, the confirmatory application was brought by KRW Law and was submitted as an application ‘confirming’ the initial application (see paragraph 4 above). It should be observed that, as follows from Article 7(2) of Decision 2004/258, the right to make a confirmatory application asking the ECB’s Executive Board to reconsider its position rests, in the event of total or partial refusal, with the initial applicant. In the present case, the right to make a confirmatory application therefore rests with KRW Law, which was the initial applicant.
30      Third, it is true that the wording of the confirmatory application referred to the following: ‘The disclosure of these documents [is] sought in circumstances where our client is a “suspect” in a criminal investigation involving damaged euro banknotes.’ However, the application did not mention at any stage the name of that client and did not identify him in any way. Contrary to what the applicant maintains, the fact that the confirmatory application contained three addresses, two relating to the offices of KRW Law and a third in respect of the office of JT Flynn & Co. Solicitors, is not a factor allowing for the conclusion that KRW Law acted on behalf of the applicant. The company JT Flynn & Co. Solicitors cannot be regarded as the same as the applicant and, moreover, the mere indication of the office address of that company is not likely to correspond to an indication that KRW Law acted on behalf of that company and, even less, on behalf of the applicant.
31      Similarly, the judgment of the Ard-Chúirt (High Court), annexed to the confirmatory application, did not allow for the identification of the applicant as a client of KRW Law either, given that that judgment concerned an action between a given person, who was not the applicant, and the Central Bank of Ireland (see paragraph 4 above). While it is admittedly true that that judgment refers to the applicant’s name in paragraphs 34 and 35, the fact remains that that reference on its own, in a judgment annexed to the confirmatory application, which, moreover, related to an action where the applicant was not a party, cannot amount to an indication that KRW Law acted on behalf of the applicant when it made the confirmatory application.
32      It follows that no part of the administrative procedure states that KRW Law made the confirmatory application on behalf of the applicant and that, moreover, that application was made as being confirmatory of an initial application made by KRW Law on its own behalf.
33      Fourth, the confirmatory application cannot be interpreted as having been made on behalf of an unidentified client of KRW Law. While it is admittedly true that the right of access to ECB documents on the part of the public is granted to any citizen and any natural or legal person, the fact remains that that right is ensured by different means depending on whether the applicant is a person residing or established in a Member State or a person not residing or not having his or her registered office in a Member State (see Article 2(1) and (2) of Decision 2004/258). Therefore, the applicant seeking access to documents must be identified or identifiable.
34      Fifth, the applicant cannot reasonably rely on the judgment of 24 May 2011, NLG v Commission (T‑109/05 and T‑444/05, EU:T:2011:235), in support of his line of argument. That judgment concerned a situation in which, contrary to the present case, it was apparent from the terms of the initial application that the lawyer who had made that application acted on behalf of the applicant in that case and that the fact that he represented the applicant was known to the defendant (judgment of 24 May 2011, NLG v Commission, T‑109/05 and T‑444/05, EU:T:2011:235, paragraphs 71 to 73).
35      The other case-law relied on by the applicant is not relevant either, since it relates to situations which are, factually and legally, different from the present case. Thus, the judgment of 25 June 2020, Malacalza Investimenti v ECB (T‑552/19, EU:T:2020:294, paragraphs 41 to 48), examines a situation in which the addressee of the contested decision was the applicant itself in that case, and the judgment of 22 June 2021, Venezuela v Council (Whether a third State is affected) (C‑872/19 P, EU:C:2021:507), relates to the question whether the Bolivarian Republic of Venezuela is to be regarded as a ‘legal person’, within the meaning of the fourth paragraph of Article 263 TFEU.
36      It follows from all of the foregoing that the initial application and the confirmatory application were formally submitted by KRW Law and that they did not contain any indication that KRW Law acted on behalf of the applicant. It is therefore clear that the contested decision is addressed to KRW Law and not to the applicant.
37      Since the applicant is not the addressee of the contested decision, he does not therefore have standing to bring proceedings under the first limb of the fourth paragraph of Article 263 TFEU.
38      Lastly, as regards the fact whether the applicant may bring an action for annulment under the second limb of the fourth paragraph of Article 263 TFEU, it should be borne in mind that the conditions of direct concern, first, and individual concern, second, laid down in that provision are cumulative (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:С:2013:625, paragraphs 75 and 76 and the case-law cited).
39      As regards the condition as to being individually concerned, it stems from settled case-law that persons other than those to whom a decision is addressed can claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguishes them individually just as in the case of the addressee of such a decision (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 223; of 13 December 2005, Commission v Aktionsgemeinschaft Recht und Eigentum, C‑78/03 P, EU:C:2005:761, paragraph 33; and of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 46).
40      In the present case, it should be noted that the contested decision does not affect the applicant on account of certain attributes which are peculiar to him as opposed to other persons potentially interested by an application for access to ECB documents. The applicant is therefore in no different a situation from that of any other beneficiary of the right of access to ECB documents on the part of the public, ensured by Article 2 of Decision 2004/258.
41      Therefore, without it being necessary to examine whether the applicant is directly concerned by the contested decision, it should be found that the applicant does not have standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU.
42      Furthermore, the applicant’s argument alleging infringement of his right to effective judicial protection is ineffective in the present case. The principle of effective judicial protection does not allow the court to set aside the condition of standing to bring proceedings laid down in the fourth paragraph of Article 263 TFEU (see, to that effect, judgments of 25 July 2002, Unión de Pequeños Agricultores v Council, C‑50/00 P, EU:C:2002:462, paragraph 44 and the case-law cited, and of 30 March 2004, Rothley and Others v Parliament, C‑167/02 P, EU:C:2004:193, paragraph 25 and the case-law cited).
43      In addition, the contested decision does not affect the applicant’s own rights since no application seeking access to documents was made on his behalf and, moreover, the possibility for the applicant to make such an application is not called into question (see, to that effect, order of 30 April 2001, British American Tobacco International (Holdings) v Commission, T‑41/00, EU:T:2001:125, paragraph 20 and the case-law cited). In that regard, it should be borne in mind that, in accordance with Articles 2 and 6 of Decision 2004/258, any person may apply for access to documents of the ECB, without it being necessary to provide a statement of reasons for the application.
44      Therefore, since the applicant does not have standing to bring proceedings pursuant to the fourth paragraph of Article 263 TFEU, the first head of claim should be rejected as being inadmissible.
45      In view of all of the foregoing, the present action must be dismissed, in part, for lack of jurisdiction of the General Court to hear it and, in part, as being inadmissible.
Costs
46      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.
47      Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the ECB.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1.      The action is dismissed in part on the ground of lack of jurisdiction and in part as being inadmissible.
2.      Mr James T. Flynn shall bear his own costs and pay those incurred by the European Central Bank (ECB).
Luxembourg, 11 August 2023.
V. Di Bucci
M.J. Costeira
Registrar
President
*      Language of the case: English.