ORDER OF THE GENERAL COURT (Fifth Chamber)
21 February 2013 (*)
(Removal of document)
In Case T‑331/11,
Leonard Besselink, residing in Utrecht (Netherlands), represented by O. W. Brouwer and J. Blockx, lawyers,
applicant,
v
Council of the European Union, represented initially by P. Plaza García and C. Fekete and J. Herrmann, and subsequently by Plaza García and Herrmann, acting as Agents,
defendant,
supported by
European Commission, represented by E. Paasivirta and P. Costa de Oliveira, acting as Agents,
intervener,
APPLICATION for annulment of the decision of the Council of the European Union of 1 April 2011 denying full access to Document No 9689/10 containing a draft Council decision authorising the European Commission to negotiate the accession agreement of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms,
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas (Rapporteur) and K. O’Higgins, Judges,
Registrar: E. Coulon,
makes the following
Order
1        By application lodged at the General Court on 16 June 2011, the applicant, Mr Leonard Besselink, applied under Article 263 TFEU for annulment of the decision of the Council of the European Union of 1 April 2011 denying full access to Document No 9689/10 containing a draft Council decision authorising the European Commission to negotiate the accession agreement of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the contested decision’).
2        In Annex A.13 to the application, the applicant produced Council Document DS 1930/10 of 22 December 2010, constituting a Commission working document (‘Document DS 1930/10’).
3        The Council, supported by the Commission, requested that Document DS 1930/10 be removed from the case-file and that references to it in the application be deleted. That document had, it claimed, never been made public, either in response to an application for access made under 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), or on the Council’s own initiative. Nor had the Commission, the author of the working document, made the document known to the public.
4        Consequently, according to the Council, the applicant was not authorised to have access to that document and to use it in legal proceedings since he had obtained it through a person who had infringed the rules of procedure set out in Regulation No 1049/2001 and in Council Decision 2006/683/EC, Euratom of 15 September 2006 adopting the Council’s Rules of Procedure (OJ 2006 L 285, p. 47).
5        Finally, the Council claims that the unauthorised production of Document DS 1930/10 would be contrary to public policy, which requires that the institutions can receive the advice of their legal service given in full independence, and, in order to substantiate its claim, it relies on the Order of the General Court in Case T‑357/03 Gollnisch and Others v Parliament [2005] ECR II‑1, paragraph 34.
6        The applicant disputes that the present case is similar to that giving rise to the Order in Gollnisch and Others v Parliament in so far as Document DS 1930/10 is not a legal opinion on the lawfulness of the contested decision, but merely a document factually describing the part of the document which is the subject of the application for access. Furthermore, the applicant claims to have found that document on a website open to the public. There is therefore no reason for Annex A.13 and the references made thereto in the body of the application to be removed from the case-file.
7        The Court must give a ruling on the Council’s application to remove Document DS 1930/10 from the case-file.
8        It is necessary, first of all, to note that it is not apparent from Document DS 1930/10 that it was drawn up by the legal service of an institution. In contrast to the case giving rise to the Order in Gollnisch and Others v Parliament, it therefore is not a legal opinion, but an internal Council document drawn up in the context of a meeting of the working group Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP).
9        However, since, as pointed out by the Council and the Commission, Document DS 1930/10 was not made public on the initiative of either of those institutions, an application for access to that document had to be brought, in accordance with the provisions of Regulation No 1049/2001, in order for that document to be made public.
10      It is apparent from the reply that the applicant did not bring such an application. Furthermore, the Council states, without being contradicted by the applicant, that Document DS 1930/10 was disseminated without the authorisation of the Council or the Commission and was therefore made public in contravention of the procedure for access to documents laid down in Regulation No 1049/2001.
11      Nevertheless, it follows from the case-law that even internal documents may, in certain cases, be lawfully placed in the case-file (orders of 19 March 1985 in Case 232/84 Tordeur and Others, [not published in the ECR], paragraph 8, and of 15 October 1986 in Case 31/86 LAISA v Council [not published in the ECR], paragraph 5).
12      Thus, in certain situations, it has not been necessary for the applicant to show that it had obtained by lawful means the internal or confidential document relied on in support of its argument. The Court held, balancing the interests to be protected, that it was necessary to consider whether particular circumstances, such as the decisive nature of the production of the document for the purposes of reviewing the lawfulness of the procedure leading to the adoption of the contested measure (see, to that effect, Case T‑192/99 Dunnett and Others v EIB [2001] ECR II‑813, paragraphs 33 and 34) or of establishing the existence of a misuse of powers (see, to that effect, Case T‑280/94 Lopes v Court of Justice [1996] ECR-SC I-A‑77 and II‑239, paragraph 59), could constitute grounds for keeping such a document in the case-file.
13      However, in the present case, it should be noted that the applicant has not asserted such particular circumstances and not alleged the decisive nature of Document DS 1930/10 to the ruling in the present case.
14      The applicant stated that Document DS 1930/10 was produced with the sole aim of illustrating the fact that a large amount of the information included in the document and in the negotiating directives attached thereto was public at the time the contested decision was adopted. He pointed out, in that regard, that other documents, officially made public by the institutions of the European Union and produced in Annexes A.8, A.14 and A.16 to the application, dealt, like Document DS 1930/10, with the subject-matter of negotiating Directive No 11.
15      In the light of those circumstances, Document DS 1930/10 should not be kept in the case-file since it concerns an internal document of the institutions, produced without the Council’s authorisation.
16      It is therefore necessary to uphold the Council’s application to have Document DS 1930/10, included in Annex A.13 to the application, removed from the case-file, and to disregard the extract from that document in paragraph 44 of the application.
17      The costs must be reserved.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1.      Council Document DS 1930/10 of 22 December 2010 constituting a Commission working document, included in Annex A.13 to the application, and the extract from that document in paragraph 44 of the application, shall be removed from the case-file.
2.      The costs are reserved.
Luxembourg, 21 February 2013.
E. Coulon
S. Papasavvas
Registrar
President
* Language of the case: English.