Keywords

Summary



Keywords

1. Actions for annulment – Actionable measures – Meaning – Measures producing binding legal effects – Preparatory measures – Not included

(Art. 230 EC; European Parliament and Council Regulation No 1049/2001, Art. 8; Commission Decision 2001/937, Annex, Arts 3 and 4)

2. Actions for annulment – Interest in bringing proceedings – Action brought against a Commission decision impliedly rejecting a request for access to documents

(Art. 230 EC; European Parliament and Council Regulation No 1049/2001, Arts 6 to 8; Commission Decision 2001/937, Annex, Arts 2 to 4)

3. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(Art. 253 EC; European Parliament and Council Regulation No 1049/2001, Arts 8(1) and (2); Commission Decision 2001/937)

4. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(Art. 10 EC; European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3), (7) and (8); Commission Decision 2001/937)

5. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3) and (5))

6. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Obligation to state reasons – Scope

(Art. 253 EC; European Parliament and Council Regulation No 1049/2001)

7. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), (3) and (6))

8. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001, Art. 4(2) and (7))

Summary

1. Only a measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 230 EC. As regards, more specifically, acts or decisions drawn up in a procedure involving several stages, only measures which definitively lay down the position of the institution on the conclusion of that procedure may be contested by means of an action for annulment. Consequently, measures of a preliminary or purely preparatory nature cannot be the subject of an action for annulment.

In that regard, in the context of the procedure for public access to Commission documents, it is clear from Articles 3 and 4 of the Annex to Decision 2001/937, amending the internal rules of the Commission, and from Article 8 of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, that the response to the initial application is only an initial statement of position, conferring on the applicant the right to request the Secretary-General of the Commission to reconsider the position in question. Consequently, only the measure adopted by the Secretary-General of the Commission, which is a decision and which entirely replaces the previous statement of position, is capable of producing legal effects such as to affect the interests of the applicant and, in consequence, capable of being the subject of an action for annulment under Article 230 EC.

(see paras 32-33, 35-36)

2. The interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be likely, if successful, to procure an advantage for the party bringing it. If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the Community judicature on the merits cannot bring him any benefit.

In the context of the procedure for access to Commission documents, which is governed by Articles 6 to 8 of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents and by Articles 2 to 4 of the Annex to Decision 2001/937, amending the rules of procedure of the Commission, in the case of an action brought against an implied decision which is followed by an express decision, the applicant no longer has an interest in bringing proceedings against the implied decision because of the adoption of the express decision, the annulment of which it seeks. By adopting the express decision, the Commission has, in fact, withdrawn the implied decision adopted previously. In such a case, consideration of the action against the implied decision cannot be justified either by the objective of preventing its alleged unlawfulness from recurring in the future, or by that of facilitating a potential action for damages, since it is possible to attain both those objectives through consideration of the action against the express decision.

(see paras 34, 43-46)

3. The period of 15 working days within which the institution must reply to the confirmatory application, as laid down in Article 8(1) and (2) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, is mandatory. However, the expiry of that period does not have the effect of depriving the institution of the power to adopt a decision. There is no legal principle which results in the administration losing its power to respond to an application, even outside the time-limits laid down for that purpose. The mechanism of an implied refusal decision was established in order to counter the risk that the administration would choose not to reply to an application for access to documents and escape review by the courts, not to render unlawful every decision which is late. On the other hand, the administration is required, in principle, to provide – even late – a reasoned response to every application by a citizen. That approach is consistent with the function of the mechanism of the implied refusal decision, which is to enable citizens to challenge inaction on the part of the administration with a view to obtaining a reasoned response. Such an interpretation does not affect the objective pursued by Article 253 EC of protecting the rights of citizens and does not permit the Commission to disregard the mandatory time-limits fixed by Regulation No 1049/2001 and Decision 2001/937, amending the rules of procedure of the Commission.

(see paras 56, 59-60)

4. An institution which receives a request for access to a document originating from a Member State must, once that request has been notified by the institution to the Member State, immediately commence, together with that Member State, a genuine dialogue concerning the possible application of the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, while paying attention in particular to the need to enable the institution to adopt a position within the time-limits laid down in Articles 7 and 8 of that regulation, under which it is required to decide on the request for access. None the less, failure to comply with the time-limit laid down in Article 8 aforesaid does not lead automatically to the annulment of the decision adopted after the deadline. The annulment of a decision solely because of failure to comply with the time-limits laid down in Regulation No 1049/2001 and Decision 2001/937, amending the rules of procedure of the Commission, would merely cause the administrative procedure for access to documents to be reopened. In any event, compensation for any loss resulting from the lateness of the Commission’s response may be sought through an action for damages.

(see paras 70-71)

5. The Community legislature, by the adoption of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, abolished the ‘rule of the author’ which had until then prevailed. Against that background, to interpret Article 4(5) of the regulation, which provides that a Member State may request an institution not to disclose a document originating from that State without its ‘prior agreement’ as conferring on the Member State a general and unconditional right of veto, so that it can oppose, in an entirely discretionary manner and without having to give reasons for its decision, the disclosure of any document held by a Community institution simply because it originates from that Member State, is not compatible with the objectives of that regulation.

The institution concerned cannot accept a Member State’s objection to disclosure of a document originating from that State if the objection gives no reasons at all or if the reasons are not put forward in terms of the exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001. Where, despite an express request to that effect by the institution concerned to the Member State, the Member State still fails to provide the institution with such reasons, the institution must, if for its part it considers that none of those exceptions applies, give access to the document that has been asked for. On the other hand, where the opposition by one or more Member States to disclosure of a document does not fulfil that requirement to state reasons, the Commission may decide, independently, that one or more of the exceptions provided for in Article 4(1) to (3) applies to the documents covered by an application for access.

(see paras 80-82)

6. The statement of reasons required under Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution responsible for authorship of the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court 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 Article 253 EC 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.

In the case of a request for access to documents, where the institution in question refuses such access, 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, regarding public access to European Parliament, Council and Commission documents. However, it may be impossible to give reasons justifying the need for confidentiality in respect of each individual document without disclosing the content of the document and thereby defeating the very purpose of the exception.

(see paras 99-101)

7. The exceptions to document access fall to be interpreted and applied strictly so as not to frustrate application of the general principle of giving the public the widest possible access to documents held by the institutions.

Moreover, the examination required for the purpose of processing a request for access to documents must be specific in nature. The mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify the application of that exception. In principle, application of the exception can be justified only if the institution has previously determined, first, that access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, that there is no overriding public interest justifying disclosure of the document concerned. A specific, individual examination of each document is also necessary where, even if it is clear that a request for access refers to documents covered by an exception, only such an examination can enable the institution to assess whether it is possible to grant the applicant partial access under Article 4(6) of Regulation No 1049/2001. An assessment relating to documents which is carried out by reference to categories rather than on the basis of the actual information contained in those documents is insufficient. The examination required of an institution must enable it to assess specifically whether an exception invoked actually applies to all the information contained in those documents.

However, in examining whether the disclosure of documents does in fact adversely affect the protected interest in a particular case, it is, in principle, open to the Commission to base its decisions in that regard on general presumptions which apply to certain categories of document, since considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. It is nevertheless incumbent on the Commission to determine in each case whether the general considerations normally applicable to a particular type of document are in fact applicable to a specific document which it has been asked to disclose.

(see paras 122-124, 130)

8. In accordance with the first indent of Article 4(2) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, the institutions are to refuse access to a document where disclosure would undermine protection of the commercial interests of a specific natural or legal person, unless there is an overriding public interest in disclosure.

Documents concerning the common organisation of the market in bananas, such as lists specifying the quantity of bananas imported during a given period and the provisional reference quantity attributed to each operator, contain confidential information concerning banana importing companies and their commercial activities and must accordingly be considered to fall within the scope of the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001.

Even within a common organisation of the market, the disclosure of provisional reference quantities and their actual use can undermine the commercial interests of the undertakings concerned, since that information makes it possible to determine in the abstract the maximum volume of operators’ activities, as well as the actual volume of activity, and to assess the competitive position of those operators, together with the success of their commercial strategies.

Furthermore, it follows from Article 4(7) of Regulation No 1049/2001 that documents the disclosure of which would undermine commercial interests benefit from special protection, since access to them may be prohibited for a period of more than 30 years. However, such protection must, in any event, be justified in the light of the content of those documents. The content of documents which go to the heart of the importing business, since they indicate the market shares, commercial strategy and sales policy of the undertakings in question, justifies that special period of protection.

(see paras 126-128, 132, 136-137)