Case T‑653/16

Republic of Malta

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Documents held by the Commission — Documents originating from a Member State — Documents exchanged pursuant to the control system for ensuring compliance with the rules of the common fisheries policy — Article 113 of Regulation (EC) No 1224/2009 — Public access following a request made by a non-governmental organisation — Action for annulment — Admissibility — Obligation to state reasons — Sincere cooperation — Choice of legal basis)

Summary — Judgment of the General Court (Ninth Chamber), 3 May 2018

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from a Member State — Application for access to data originating from a Member State pursuant to the control system for ensuring compliance with the rules of the common fisheries policy — Applicability of the authorship rule laid down in Regulation No 1224/2009

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Scope — Application to data originating from a Member State pursuant to the control system for ensuring compliance with the rules of the common fisheries policy — Applicability of the provisions of Regulation No 1224/2009 in their entirety

EU institutions — Right of public access to documents — Application for access to data originating from a Member State pursuant to the control system for ensuring compliance with the rules of the common fisheries policy — Application of Regulation No 1224/2009 as lex specialis in relation to Regulation No 1049/2001 — Precluded

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from a Member State — Obligations of the institution concerned as regards consultation of the Member State before adopting a decision — Time limit for the Member State to reply

It follows that the Member States may, by means of an action for annulment, challenge any measure adopted by the Commission in the form of a regulation or an individual decision and may, in so doing, plead in support of their claims, inter alia, any infringement of an essential procedural requirement or infringement of any rule of law relating to the application of the Treaties. In the first place, it follows that a Member State is entitled to challenge, by means of an action for annulment, a Commission decision adopted under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents allowing a natural or legal person to have access to documents held by the Commission originating from that Member State, and does not need to identify a separate Commission decision — alone susceptible to challenge — not to give effect to the objection of that Member to disclosure of the documents concerned. In the second place, a Member State is entitled, in support of such an action brought against a Commission decision granting a third party access to documents, to rely on any plea relating to one of the four cases laid down in Article 263 TFEU under which an action for annulment may be brought and, in particular, any plea alleging infringement of a procedural or substantive requirement which it considers relevant, without prejudice to whether or not that plea is in fact relevant. Thus, as regards the admissibility of a plea advanced against such a decision, there is no need to draw a distinction according to whether the rule which is alleged to have been breached is provided for by Regulation No 1049/2001 or by another legal instrument. Moreover, the circumscription of the power to participate in a decision of the European Union conferred on the Member State concerned by Article 4(5) of Regulation No 1049/2001 cannot prevent that Member State from seeking the annulment of a Commission decision granting access to the documents in question and from relying, for such purposes, on illegalities other than those alleging infringement of Article 4 thereof. (see paras 35-37, 41)

See the text of the decision. (see paras 47, 48)

See the text of the decision. (see paras 53, 54, 57)

It follows that an institution is not precluded from making documents public despite the fact that no application to that effect has been submitted to it, nor, for reasons of transparency and completeness, from informing a person who has submitted an application under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents of documents that that person has not expressly identified and referred to in his application. In those circumstances, infringement of the rules for examining applications for access to documents provided for in Articles 6 to 8 of Regulation No 1049/2001, although capable, in certain circumstances, of affecting the legality of a decision refusing to grant access to certain documents, cannot affect the legality of a decision to grant access to those documents. In particular, first, as regards Article 6 of Regulation No 1049/2001, it is important to note that, although an institution cannot reject an application as insufficiently precise without previously having asked the applicant to clarify his application, an institution cannot legitimately be criticised for having granted access to documents on the basis of an allegedly imprecise application without asking the applicant to clarify his application. Where an applicant has not been asked to clarify his application, neither can the institution nor a fortiori a third party legitimately rely on the allegedly vague nature of the applicant’s request. Thus, where an institution considers itself able, without incurring a disproportional workload, of identifying all documents potentially related to a request, even expressed in general terms in respect of many documents, that institution is free to take a decision, without having asked the applicant to clarify that application, then, where appropriate, to grant access to all the documents identified, provided that the documents do not fall under the exceptions laid down, inter alia, in Article 4 of Regulation No 1049/2001. Second, as regards Articles 7 and 8 of Regulation No 1049/2001, the Court notes that the time limits laid down under those articles merely aim to achieve the swift processing of applications for access to documents and to expedite the disclosure of the documents requested where their disclosure is possible. Failure to comply with such time limits laid down in Articles 7 and 8 of Regulation No 1049/2001 does not have the effect of depriving the institution of the power to adopt a decision and does not in itself taint a decision with unlawfulness justifying its annulment. It is all the more necessary for there to be no repercussions from failure to comply with the abovementioned time limits in the case of a decision granting access to documents if, in such a case, the applicant has obtained satisfaction despite the Commission’s failure to comply with those time limits, which were introduced solely for his benefit. (see paras 80-83, 85-87)

It therefore follows that Article 4(4) and (5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, interpreted in accordance with the duty of sincere cooperation laid down in Article 4(3) TFEU, determines the rules for the consultation by an institution of third parties from whom documents originate and the ways in which the Member States from whom documents originate may participate in the process for the adoption of the institution’s decision on access to those documents. Therefore, the same provisions of that regulation govern the relationship between the institution and third parties, in particular the Member States, as regards documents originating from the latter, and is intended to protect the interests of such third parties and of the Member States to oppose disclosure of the documents. In those circumstances, the infringement of Article 4(4) and (5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents and of the duty of sincere cooperation owed by the institution to a Member State is liable to affect the legality of a decision granting access to documents originating from that Member State. (see paras 98-100)

In that regard, it should be noted as a preliminary point that, although Articles 7 and 8 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents require the institutions to respond to initial and confirmatory applications for access to documents within certain times, the regulation does not set any period of time within which an institution should inform a Member State that an application for access to documents originating from it has been made, nor within which to communicate the application to the Member State. In particular, Regulation No 1049/2001 does not specify the time limit for a reply which the institution should consequently set for the Member State, so that the latter can inform the institution of any opposition to disclosure of the documents in question. However, having regard to the case-law set out in paragraphs 96 and 97 above, it follows from the duty of sincere cooperation that the Commission is bound to act diligently in its relations with the Member State concerned so that it can itself take a decision within the time limits stipulated in Articles 7 and 8 of Regulation No 1049/2001. (see paras 106, 107)

Third, it is clear from the actual wording of Article 113(2) and (3) of Regulation No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy that data collected and transmitted by a Member State to the Commission pursuant to that regulation cannot, in principle, be transmitted to persons other than those whose responsibilities require them to have such access, or be used for any purposes other than those provided for in the regulation, unless the Member State who transmitted the data gives its express consent. In that regard, those provisions are not in themselves intended to govern the conditions for public access to documents transmitted to the Commission by a Member State pursuant to that regulation. They are merely intended to specify the conditions under which data collected and transmitted by a Member State within the framework of that regulation can be transferred and used. It follows that Article 113(2) and (3) of Regulation No 1224/2009 is not, as such, lex specialis derogating from the general rules on public access to documents laid down in Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, but in fact lays down specific rules ensuring enhanced protection of certain data, whether or not personal and regardless of its level of confidentiality, solely on the basis that it was provided by a Member State. (see paras 133, 138, 139)

No provision of Regulations Nos1049/2001 regarding public access to European Parliament, Council and Commission documents and 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy expressly gives one regulation priority over the other. Accordingly, it is appropriate to ensure that each of those regulations is applied in a manner compatible with the other and which enables a coherent application of them. In that regard, the rules on access to documents, particularly those set out in Article 4 of Regulation No 1049/2001, cannot, where, as in the present case, the documents covered by the application fall within a particular area of EU law — in this case, the system for control in order to ensure compliance with the rules of the common fisheries policy — be applied and interpreted without taking account of the specific rules governing the transmission and use of the data contained in those documents, which are laid down, in the present case, in Article 113(2) and (3) of Regulation No 1224/2009. Therefore, where a request based on Regulation No 1049/2001 seeks to obtain access to documents containing data within the meaning of Regulation No 1224/2009, Article 113(2) and (3) of Regulation No 1224/2009 become applicable in its entirety. (see paras 137, 141, 142)

Second, it appears that, as far as concerns data communicated by a Member State pursuant to Regulation No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, the EU legislature intended to maintain, in a certain form, the authorship rule, which was nevertheless, in principle, abolished in respect of public access to documents under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. That rule, in the form it took before the entry into force of Regulation No 1049/2001, implied that, where the author of the document held by an institution was a third party, the request for access to the document had to be made directly to the author of the document. Accordingly, the application of the restriction laid down in Article 113(2) and (3) of Regulation No 1224/2009 is not subject to express and prior opposition of the Member State concerned, to reliance by that Member State on one of the substantive exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001 or in Article 113(4) of Regulation No 1224/2009, or to a statement of reasons for any opposition formulated by the Member State. Furthermore, the prohibition on the transmission or use of data cannot, as the Commission claims, come to an end after an administrative investigation initiated under Article 102(2) of Regulation No 1224/2009 is closed, but ceases only when the Member State which provided the data in question expressly agrees to its transmission or use. (see paras 147, 151, 152)

The choice of the legal basis of an EU act must rest on objective factors amenable to judicial review, which include the aim and content of that measure. If the examination of an EU measure reveals that it pursues a twofold purpose or that it comprises two components and if one of these is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component. As regards Regulation No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, that regulation is principally designed to ensure a system for control, inspection and enforcement for ensuring compliance with the rules of the common fisheries policy. The material scope of Regulation No 1224/2009 predominantly relates to the common fisheries policy, even if only involving the collection and exchange of various data relating to that policy. It is only as a secondary matter that Regulation No 1224/2009 includes, in particular in Articles 112 and 113 thereof, provisions relating to data protection and, in particular, provisions regulating and restricting the transmission and use of data communicated by the Member States. In those circumstances, the Council was required adopt Regulation No 1224/2009 on the sole basis of Article 43 TFEU, relating to the common agricultural policy, which includes the common fisheries policy. (see paras 156-158)