The procedure for gaining 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 Commission Decision 2001/937, amending the Commission’s rules of procedure, takes place in two stages. First, the applicant must send the Commission an initial request for access to documents. In principle, the Commission must reply to the initial request within 15 working days from registration of the application. Secondly, in the event of a total or partial refusal, the applicant may, within 15 working days of receiving the Commission’s initial reply, make a confirmatory application to the Secretary-General of the Commission, to which the latter must in principle reply within 15 working days from the registration of that application. In the event of a total or partial refusal, the applicant may institute court proceedings against the Commission or make a complaint to the European Ombudsman, in accordance with the conditions laid down in Articles 230 and 195 EC respectively.

It is clear from Articles 3 and 4 of the Annex to Decision 2001/937, read in conjunction with Article 8 of Regulation No 1049/2001, 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 that position. 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, accordingly, capable of being the subject of an action for annulment under Article 230 EC.

However, since the Commission omitted to inform the applicant, which the Commission is required to do under Article 7(1) of that regulation, of its right to make a confirmatory application, that irregularity has the consequence of rendering admissible, exceptionally, an action for annulment of the initial application, so as to prevent the Commission from being able to avoid review by the Community judicature of a breach of procedure attributable to it.

Since the European Community is a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the EC Treaty, the procedural rules governing actions brought before the Community judicature must be interpreted in such a way as to ensure, as far as possible, that those rules are implemented in such a way as to contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under Community law. The requirement of judicial control reflects a general principle of Community law which flows from the constitutional traditions common to the Member States and which is laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights. The right to an effective remedy was also reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union.

(see paras 69-71, 74, 75)