JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

20 January 2011

Case F-121/07

Guido Strack

v

European Commission

(Civil service — Officials — Access to documents —Regulation (EC) No 1049/2001 — Jurisdiction of the Civil Service Tribunal — Admissibility — Acts adversely affecting an official)

Application: brought under Articles 236 EC and 152 EA by which Mr Strack seeks annulment of the decisions of the European Commission of 12 January, 26 February and 20 July 2007 to the extent that they refuse him access to certain documents in the Commission’s possession and an order that the Commission pay damages of at least EUR 10 000 with interest to make good the harm suffered as a result of that refusal of access.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Procedure — Lodging of defence — Time-limit — Extension

(Rules of Procedure of the Civil Service Tribunal, Art. 39(2))

2. Procedure — Oral procedure — Report for the Hearing drawn up by the Judge-Rapporteur — Purpose

3. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Rule of a general nature — Request by an official for access to his personal and medical files — Subject to the Staff Regulations of Officials

(Staff Regulations, Art. 26, seventh and eight paras, and 26a; European Parliament and Council Regulation No 1049/2001)

4. Officials — Actions — Jurisdiction of the Civil Service Tribunal — Action against a decision refusing an application for access to documents made by an official under Regulation No 1049/2001 — Whether included

(Arts 230 EC and 236 EC; Statute of the Court of Justice, Annex I, Art. 1; European Parliament and Council Regulation No 1049/2001, Art. 8(1); Council Decision 2004/752, Art. 1)

5. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Decision refusing public access to documents —Definition

(European Parliament and Council Regulation No 1049/200, Art. 6(2))

6. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Obligation to formulate an application for access in a sufficiently precise manner

(European Parliament and Council Regulation No 1049/2001, Art. 6(1) and (2))

1. Article 39(2) of the Rules of Procedure of the Civil Service Tribunal allows its President to grant an extension of the time-limit laid down for the defendant to lodge a defence. In that regard, the fact that several extensions have been granted in the absence of adversarial argument does not breach the applicant’s right to fair legal process if the position of the parties has not been substantially changed. The fairness of a procedure has to be assessed in the light of that position taken as a whole.

(see para. 39)

2. As its title suggests, the preparatory report for the hearing by the Judge-Rapporteur of the European Union is intended to prepare for the hearing and to allow the parties to submit any observations on the facts of the dispute and the questions raised in that report with a view to the drafting of the judgment. Thus, the amendment of that document as such has no implications for the progress of the judicial proceedings and the content of the judgment, and the criticisms made of it by the parties can be taken into account in the preparation of the judgment only if they are relevant.

(see para. 42)

3. The access of officials to their personal file and the access of officials to their medical file are regulated by the seventh and eighth paragraphs of Article 26 and by Article 26a of the Staff Regulations respectively, and the possibility of officials’ having access to any other data concerning them is governed by Regulation No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents.

Although Regulation No 1049/2001 is a rule of a general nature which determines the general principles governing the right of any citizen of the Union to access to the documents of the institutions concerned in all the spheres of activity of the Union, including that of the civil service, the right of access thus provided for may be limited or precluded — on the principle that a special rule derogates from the general rule (lex specialis derogat legi generali) — where there are special rules governing specific matters.

In that regard, the seventh and eighth paragraphs of Article 26 and Article 26a of the Staff Regulations constitute special provisions which derogate from those of Regulation No 1049/2001 as they govern access to specific types of documents, one type relating to the administrative position, the responsibilities, the performance and the conduct of officials and the other type being of a medical nature.

(see paras 65-67)

See:

5 April 2005, T-376/03 Hendrickx v Council, para. 55; 14 July 2005, T-371/03 Le Voci v Council, para. 122; 17 May 2006, T-93/04 Kallianos v Commission, para. 87

13 January 2010, F-124/05 and F-96/06 A and G v Commission, para. 294

4. It follows from Article 1 of Annex I to the Statute of the Court of Justice that the Civil Service Tribunal has jurisdiction to hear any dispute between an official and his institution arising from the employment relationship between them, whatever provisions the official relies on in support of his action. That assertion is borne out by Article 1 of Decision 2004/752 establishing the European Union Civil Service Tribunal.

Consequently, the Tribunal has jurisdiction to rule on an action for annulment brought on the basis of Article 236 EC against a refusal by the Commission to grant a request for access to documents made by an official or staff member under Regulation No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents arising from the employment relationship between that official or staff member and the Commission. That assertion cannot be affected by the fact that Article 8(1) of that regulation provides only for the action for annulment established by Article 230 EC. The fact that the legislature intended, by that regulation, to give as wide an effect as possible to the right of the general public to access to documents held by the institutions explains why the legislature envisaged the most common means of redress, without the reference to Article 230 EC having the effect of limiting the means of redress open to the legal person to the action for annulment provided for by that article and thereby restricting the extent of the jurisdiction conferred on the Tribunal by Article 1 of Annex I to the Statute of the Court of Justice.

(see paras 71-74)

See:

19 January 2010, T-355/04 and T-446/04 Co-Frutta v Commission, para. 71

5. A request made by the appointing authority, under Article 6(2) of Regulation No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents, for clarification of an application for access to documents because of the large number of documents concerned expressly leaves open the examination of the application for access, so that an action for annulment directed against that request is inadmissible.

(see para. 84)

See:

12 October 2000, T-123/99 JT’s Corporation v Commission, para. 25

6. Where clear provisions such as Article 6(1) and (2) of Regulation No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents unequivocally lay down an obligation to formulate an application in a sufficiently precise manner to allow the administration to respond to it, failure to fulfil that obligation cannot require that administration to undertake research itself in order to remedy such lack of precision in some cases expending considerable resources. In an extension of the rule that individuals cannot seek to misuse Community measures, public servants, where they make a request to the public authority, are under an obligation to provide information and to act in good faith towards the institutions.

In that context, although the institution to which an application is made retains the right, in particular cases where concrete, individual examination of the documents would entail an unreasonable amount of administrative work, to balance the interest in public access to the documents against the burden of work so caused, in order to safeguard, in those particular cases, the interests of good administration, the institution must, a fortiori, enjoy that possibility where the application for access concerns a considerable number of documents which are not identified clearly, so that the processing of the application necessitates a substantial amount of preliminary research.

(see paras 86, 87, 89)

See:

23 January 2002, T-386/00 Gonçalves v Parliament, para. 74; 17 October 2002, T-180/00 Astipesca v Commission, para. 93; 11 March 2003, T-186/00 Conserve Italia v Commission, para. 50; 13 April 2005, T-2/03 Verein für Konsumenteninformation v Commission, para. 102