Case T‑188/12

Patrick Breyer

v

European Commission

‛Access to documents — Regulation (EC) No 1049/2001 — Written submissions lodged by the Republic of Austria in infringement proceedings before the Court of Justice — Refusal to grant access’

Summary — Judgment of the General Court (Second Chamber), 27 February 2015

See the text of the decision. (see paras 27-29)

The concept of a ‘document’, which is given a broad definition in Article 3(a) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, covers ‘any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within [an EU] institution’s sphere of responsibility’. That definition is essentially based on the existence of content that is saved and that may be copied or consulted after it has been generated, it being understood that the nature of the storage medium on which content is saved, the type and nature of the content stored, and the size, length, volume or presentation of the content have no bearing on the question whether or not it falls within the abovementioned definition and that the only restriction on the content that falls within that definition is the condition that the said content must relate to the policies, activities or decisions falling within the powers of the institution in question. (see paras 41, 42)

Written submissions by a Member State, lodged at the Court of Justice in the context of an action for failure to fulfil obligations under Article 258 TFEU and sent to the Commission as a party to the proceedings must be classified as documents held by an institution within the meaning of Article 2(3) of Regulation No 1049/2001 in conjunction with Article 3(a) thereof. That conclusion cannot be called into question by the fact that the submissions are addressed not to the Commission but to the Court of Justice, and that the Commission merely received copies from the Court. Although under Article 2(3) of Regulation No 1049/2001 only ‘documents held by an institution, that is to say, documents drawn up or received by it and in its possession’ fall within the scope of that regulation, that provision nevertheless certainly does not make the application of the regulation to documents ‘received’ by the institution contingent on the document in question having been addressed to it and sent directly by its author. Similarly, since the concept of document is given a broad definition in Article 3(a) of Regulation No 1049/2001, based on the existence of a content that is saved, it is irrelevant for the purposes of the existence of a document within the meaning of Article 3(a) of Regulation No 1049/2001 that the written submissions at issue were sent to the Commission in the form of copies and not in the form of originals. Moreover, it follows from the broad definition of the concept of a document and from the wording and the very existence of the exception relating to the protection of court proceedings in the second indent of Article 4(2) of that regulation that the EU legislature did not intend to exclude the institutions’ litigious activities from the public’s rights of access. That consideration applies a fortiori because the regulation neither excludes the institutions’ litigious activities from its scope nor limits its scope to their administrative activities alone. Furthermore, since the written submissions were sent to the Commission in the context of an action for failure to fulfil obligations which it had brought in the exercise of its powers under Article 258 TFEU, the Commission received them in the exercise of its powers. Moreover, including the written submissions by a Member State in the context of legal proceedings within the scope of Regulation No 1049/2001 does not undermine the objective of the specific rules relating to access to documents concerning the court proceedings. Protection of the said proceedings can, if necessary, be ensured by applying the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001, it being understood that account can be taken of the absence, in the specific rules relating to the European Union Courts, of a right of third-party access to written submissions made to those Courts in court proceedings for the purposes of interpreting the exception relating to the protection of court proceedings. (see paras 48-51, 53, 54, 57, 61, 104, 105)

Written submissions lodged with the Court by a Member State in the content of an action for failure to fulfil obligations brought against it by the Commission, like the Commission’s written submissions, are specific since they are inherently a part of the judicial activities of the Court. Given that, in its written submissions, the defendant Member State may inter alia raise all the pleas available to it in order to defend itself, in responding to the grounds of complaint raised by the Commission, which define the subject-matter of the dispute, the written submissions of the defendant Member State provide the Court with the information on the basis of which it is to adjudicate. In that regard, even though they are a part of the judicial activities of the European Union Courts, written submissions lodged before those Courts by an institution are not excluded, any more than those of the Commission, by virtue of the fourth subparagraph of Article 15(3) TFEU, from the right of access to documents. Apart from the fact that submissions drafted by a Member State with a view to legal proceedings exhibit common specific characteristics, neither the fourth subparagraph of Article 15(3) TFEU nor the fact that those written submissions originate from different authors nor the nature of those written submissions require a distinction to be made, for the purposes of their inclusion within the scope of the right of access to documents, between written submissions originating from the Commission and those originating from a Member State. It follows that the fourth subparagraph of Article 15(3) TFEU cannot be interpreted as having established, as regards access to written submissions drawn up for court proceedings, any authorship rule requiring a distinction to be made between written submissions drawn up by an institution for court proceedings and those produced by a Member State at the litigation phase of proceedings for failure to fulfil obligations. However, a distinction should be made between the exclusion under the fourth subparagraph of Article 15(3) TFEU of the judicial activities of the Court of Justice from right of access to documents and written submissions drawn up for proceedings, which, although they are a part of those judicial activities, are nevertheless not covered by the exclusion established by that provision and are instead subject to the right of access to documents. Therefore, the fourth subparagraph of Article 15(3) TFEU does not preclude the inclusion of the written submissions at issue within the scope of Regulation No 1049/2001, provided that the conditions governing the application of that regulation are met and without prejudice to the application, if appropriate, of one of the exceptions set out in Article 4 of that regulation and the possibility under Article 4(5) for the Member State concerned to request the institution concerned not to disclose its written submissions. (see paras 72, 73, 79-83)