JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

28 April 2017 ( *1 )

‛Access to documents — Regulation (EC) No 1049/2001 — Documents relating to a procedure for failure to fulfil obligations — Documents drawn up by a Member State — Request for access to documents made to the Member State — Request forwarded to the Commission — Refusal of access — Competence of the Commission — Document originating from an institution — Article 5 of Regulation (EC) No 1049/2001’

In Case T‑264/15,

Gameart sp. z o.o., established in Bielsko-Biała (Poland), represented by P. Hoffman, lawyer,

applicant,

v

European Commission, represented by J. Hottiaux, A. Buchet and M. Konstantinidis, acting as Agents,

defendant,

supported by

Republic of Poland, represented by B. Majczyna, M. Kamejsza and M. Pawlicka, acting as Agents,

by

European Parliament, represented by D. Warin and A. Pospíšilová Padowska, acting as Agents,

and by

Council of the European Union, represented initially by J.-B. Laignelot, K. Pleśniak and E. Rebasti, and subsequently by J.-B. Laignelot and E. Rebasti, acting as Agents,

interveners,

ACTION under Article 263 TFEU for annulment of the decision of the Commission of 18 February 2015 in so far as it refused the request for access to documents drawn up by the Republic of Poland, a request which was forwarded to it by the Republic of Poland on the basis of the second paragraph of Article 5 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents,

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, J. Schwarcz (Rapporteur) and C. Iliopoulos, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 30 November 2016,

gives the following

Judgment

Background to the dispute

1 The applicant, Gameart sp. z o.o., is a business in the entertainment sector established in Poland.

2 On 10 November 2014, the applicant, on the basis of the polskie przepisy o dostępie do informacji publicznej (Polish provisions regarding access to public information), filed a request with the Polish Ministry of Foreign Affairs (‘the MFA’) for access to documents relating to procedures conducted by the European Commission concerning the infringement of EU law by the Polish law of 19 November 2009 on gaming.

3 In particular, the applicant requested access to copies of the letters sent by the Commission to the Republic of Poland in connection with those procedures. It also requested access to copies, in the MFA’s possession, of the letters sent by the Republic of Poland to the Commission concerning those procedures (‘the documents at issue’).

4 On 18 November 2014, the MFA forwarded the applicant’s request by email to the Commission pursuant to the second paragraph of Article 5 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

5 On 19 November 2014, the MFA informed the applicant that its request concerned documents of the EU institutions, that the request was subject to the provisions of Regulation No 1049/2001 and that, consequently, pursuant to the second paragraph of Article 5 of that regulation, it had forwarded the request to the Commission for examination.

6 On 15 December 2014, the Commission refused access to the requested documents, relying on the exception in the third indent of Article 4(2) of Regulation No 1049/2001, namely the protection of the purpose of inspections, investigations and audits, and on the fact that the procedure regarding the infringement of EU law by the Republic of Poland was still ongoing.

7 On 2 January 2015, the applicant sent the Commission a confirmatory application for access to the documents, pursuant to Article 7(2) of Regulation No 1049/2001. In its application, it maintained that the Commission did not have competence to adopt a decision with regard to its request for access to the documents at issue, since they were not within the scope of Regulation No 1049/2001. In particular, the applicant maintained that the second paragraph of Article 5 of the regulation could not apply to those documents, since that provision concerns only documents originating from EU institutions.

8 By decision of 18 February 2015 (‘the contested decision’), the Commission rejected the confirmatory application and refused access to the documents at issue, relying again on the exception in the third indent of Article 4(2) of Regulation No 1049/2001 and on the fact that the procedure regarding the infringement of EU law by the Republic of Poland was still ongoing.

Procedure and forms of order sought

9 By application lodged at the Court Registry on 8 May 2015, the applicant brought the present action.

10 By documents lodged on 8, 11 and 18 September 2015, respectively, the Republic of Poland, the Council of the European Union and the European Parliament sought leave to intervene in the present case in support of the form of order sought by the Commission.

11 By orders of 19 October 2015, the President of the Fifth Chamber of the General Court granted leave to intervene.

12 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was accordingly allocated.

13 The applicant claims that the Court should: — annul the contested decision in so far as it confirms the refusal to grant access to the documents at issue; — in the alternative, find that the second paragraph of Article 5 of Regulation No 1049/2001 is inapplicable in the present case, pursuant to Article 277 TFEU; — order the Commission to pay the costs.

14 The Commission, supported by the Republic of Poland, the Council and the Parliament, contends that the Court should: — dismiss the action; — order the applicant to pay the costs.

Law

Interest in bringing proceedings

15 The Commission, without formally raising a plea of inadmissibility, submits that the applicant might not have a legal interest in bringing proceedings.

16 It maintains in that respect that the applicant does not challenge the contested decision in that it refuses to grant access to the documents at issue, but merely calls into question the Commission’s competence to adopt that decision. The refusal to grant access does not therefore in itself constitute an act unfavourable to the applicant, and would not be affected by any annulment of the contested decision. According to the Commission, if the Court held that the Commission was not competent to examine the whole of the application forwarded to it by the Polish authorities, this would not change the applicant’s legal situation, since an annulment of the contested decision would not grant the applicant access to the documents at issue and would not compel the Polish authorities to disclose them.

17 The applicant contends that, from the standpoint of the Polish authorities, the procedure opened following its application to these authorities on the basis of Polish legislation was closed by the adoption of the contested decision. Accordingly, the contested decision prevented the applicant from obtaining access to the documents at issue. It adds that if its application had not been forwarded to the Commission under Article 5 of Regulation No 1049/2001, the MFA would have had to examine its application on the basis of the Polish law regarding access to public information and grant it access to the documents at issue, given that, under Polish law, disclosure of public information cannot be refused owing to the existence of an ongoing procedure before EU institutions.

18 It should be noted that, in adopting the contested decision, the Commission considered itself competent to adjudicate upon the request for access to the documents at issue on the basis of Article 5 of Regulation No 1049/2001.

19 If the contested decision were to be partially annulled on the ground that the Commission was not competent to adopt that decision, as the applicant claims, it is true that the applicant would nonetheless not have access to the documents at issue. It does not follow, however, that the applicant does not have an interest in seeking the annulment of the contested decision.

20 First, it is settled case-law that an applicant has an interest in seeking the annulment of an act of an institution in order to prevent its alleged unlawfulness from recurring in the future. That interest in bringing proceedings follows from the first paragraph of Article 266 TFEU, under which the institution whose act has been declared void is required to take the necessary measures to comply with the judgment of the EU judicature. However, that interest in bringing proceedings can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case which gave rise to the action brought by the applicant (see, to that effect, judgments of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 50 to 52, and of 9 September 2011, LPN v Commission, T‑29/08, EU:T:2011:448, paragraph 60).

21 Such is the situation in the present case. The unlawfulness alleged by the applicant stems from an interpretation of Article 5 of Regulation No 1049/2001 that the Commission may well follow when examining a new application. Also, the applicant may submit similar requests for access in the future, as the Commission moreover invites it to do in its pleadings. Consequently, there is a sufficiently tangible risk, independent of the circumstances of the present case, that in the future, in similar situations, the applicant could find itself vulnerable to the same alleged unlawfulness.

22 On that last point, it should be noted that the Commission submitted before the Court that the applicant may, independently of the contested decision, reapply to the Polish authorities to request access to the documents at issue. However, as the applicant rightly claims, even though it would be possible to submit a new request for access to those documents, nothing would prevent the Polish authorities, if the contested decision were not annulled, from forwarding that new request to the Commission pursuant to Article 5 of Regulation No 1049/2001 and the Commission from rejecting it again for the same reasons as those adopted in the contested decision.

23 Secondly, the contested decision is the only decision that has been notified to the applicant until now and it affects the applicant adversely since it does not grant it the access requested and closed the procedure opened by the Polish authorities as acknowledged, in essence, by the Republic of Poland in its statement in intervention. At the hearing, in response to a question of the Court, the Republic of Poland stated that the annulment of the contested decision would prompt the national body to reopen the procedure and examine the applicant’s request on the basis of national legislation.

24 It follows from the above that the applicant does have an interest in obtaining the partial annulment of the contested decision.

Substance

25 In the application, the applicant raises four pleas in law in support of its action. The first plea alleges lack of competence of the Commission under the second paragraph of Article 5 of Regulation No 1049/2001. The second plea alleges infringement of Article 4(4) and (5) of Regulation No 1049/2001 in that the contested decision was adopted without the State from which the documents at issue originate having being consulted and despite the fact that that State was not opposed to their disclosure. The third plea alleges infringement of Article 296 TFEU due to the lack of adequate reasons given for the contested decision, and the fourth plea, put forward in the alternative, alleges, pursuant to Article 277 TFEU, that the second paragraph of Article 5 of Regulation No 1049/2001 is invalid. Moreover, in its reply, the applicant raises a fifth plea, alleging infringement of the right to good administration and of Article 6(2) of Regulation No 1049/2001.

26 The first plea is divided into two parts.

27 In the first part of the first plea, the applicant maintains that Article 5 of Regulation No 1049/2001 is inapplicable to the documents at issue, given that that provision concerns only documents originating from EU institutions. It is irrelevant in this regard that those documents may also have been held by the Commission within the meaning of Article 2(3) of Regulation No 1049/2001, since the applicant did not submit a request for access to the Commission. According to the applicant, the mere fact that a request for access has been forwarded by a Member State to the Commission under the second paragraph of Article 5 of Regulation No 1049/2001 does not confer competence on the Commission when the request does not concern documents originating from the Commission.

28 The Commission, the Republic of Poland and the Council challenge the merits of this part.

29 First, the Commission acknowledges that the MFA was under no obligation, pursuant to Article 5 of Regulation No 1049/2001, to refer the request for access to the documents at issue to it and could have decided autonomously on the basis of national legislation whether or not those documents could be disclosed to the applicant. It notes that Article 5 of Regulation No 1049/2001 restricts the obligation of the Member State that has received a request for access to documents in its possession to consult the EU institution or to refer the request to it solely to the situation where those documents originate from that institution. Nonetheless, since the request for access concerned both documents originating from it and the documents at issue and the MFA forwarded the whole of that request to it, it made the decision to respond to the whole of that request.

30 Secondly, the Commission submits that the documents at issue are without doubt ‘documents held by an institution’ within the meaning of Article 2(3), read in conjunction with Article 3(a) of Regulation No 1049/2001. It is clear from recital 10 and Article 2(3) of Regulation No 1049/2001 and from settled case-law that ‘all documents held by the institutions are within the scope of the regulation, including those originating from the Member States, so that access to such documents is in principle governed by the provisions of the regulation, including those which lay down substantive exceptions to the right of access’ (judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 67). The Commission stresses that those provisions and that case-law is what it customarily relies on when rejecting in their entirety third party requests for access to documents drawn up by a Member State and by the Commission during an infringement procedure. It concludes that it therefore had a legal basis for adopting the contested decision as regards the documents at issue.

31 It should be noted that, pursuant to Article 2(1) to (4) of Regulation No 1049/2001: ‘1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation. … 3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union. 4. Without prejudice to Articles 4 and 9, documents shall be made accessible to the public either following a written application or directly in electronic form or through a register ...’

32 Article 5 of Regulation No 1049/2001 provides: ‘Where a Member State receives a request for a document in its possession, originating from an institution, unless it is clear that the document shall or shall not be disclosed, the Member State shall consult with the institution concerned in order to take a decision that does not jeopardise the attainment of the objectives of this Regulation. The Member State may instead refer the request to the institution.’

33 Lastly, Article 6(1) of that regulation provides that ‘applications for access to a document shall be made in any written form … and in a sufficiently precise manner to enable the institution to identify the document[;] the applicant is not obliged to state reasons for the application’.

34 With regard to the alleged competence of the Commission under Article 5 of Regulation No 1049/2001, it should be noted that that provision establishes a coordination mechanism between EU institutions and Member States when Member States receive requests for access to documents in their possession originating from an institution.

35 Except in the cases specifically set out in that provision and where that is imposed by the requirements of the obligation of sincere cooperation laid down in Article 4(3) TEU, requests for access to documents held by the national authorities, including when such documents originate from EU institutions, remain governed by the national rules applicable to those authorities, without the provisions of Regulation No 1049/2001 taking the place of those rules (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 70).

36 It should be noted that Article 5 of Regulation No 1049/2001 makes no provision for the possibility of forwarding to the Commission a request for access to documents which originate from a Member State. The wording of the article expressly states that its substantive scope is limited to documents ‘originating’ from EU institutions.

37 Accordingly, it should be concluded that the Commission was not competent to adjudicate upon the request for access to the documents at issue which was forwarded by the MFA on the basis of Article 5 of Regulation No 1049/2001.

38 This conclusion cannot be called into question by the arguments of the Commission or of the interveners.

39 First, the Republic of Poland submits that the competence of the Commission to examine the request for access to the documents at issue derives from the spirit of Article 5 of Regulation No 1049/2001.

40 According to the Republic of Poland, the documents exchanged during a procedure for failure to fulfil obligations are ‘mixed’ documents, on the ground that the content of documents drawn up by the Commission during that procedure is closely linked to the content of the documents drawn up by the Member State concerned and, therefore, that the disclosure of the contents of the former entails disclosing the contents of the latter, and vice-versa. According to the Republic of Poland, the documents drawn up by a Member State in that context may therefore be qualified as documents originating from the Commission within the meaning of Article 5 of Regulation No 1049/2001.

41 The Republic of Poland also submits that it is apparent from Article 3(a) of Regulation No 1049/2001 and from case-law that the concept of ‘document’ does not designate, in essence, the medium, but rather the information that it contains.

42 In this regard, it suffices to note that the interpretation of Article 5 of Regulation No 1049/2001 put forward by the Republic of Poland, which has no basis in Regulation No 1049/2001, is incompatible with the wording of that provision (see paragraph 36 above). That interpretation cannot therefore be upheld.

43 Secondly, the Republic of Poland and the Council claim that the Commission was competent to adjudicate upon the request for access to the documents at issue on the basis of the principle of sincere cooperation.

44 However, this principle, referred to in recital 15 of Regulation No 1049/2001 as governing the relationship between the institutions and the Member States, cannot, on its own, constitute a basis for the competence of the Commission to examine a request for access such as the one at issue in the present case, in the absence of any legal basis provided for in Regulation No 1049/2001.

45 It should be added that a certain number of arguments raised by the Commission itself run counter to this argument.

46 In particular, the Commission asserts that the MFA could have decided autonomously, on the basis of national legislation, whether or not the documents sent by the Polish authorities to the Commission during the infringement procedure could be disclosed to the applicant.

47 The Commission also states that the contested decision does not compel the Polish authorities to adopt the same position as its own. In that regard, it rightly submits that the case-law of the Court of Justice regarding written submissions lodged before the EU judicature — from which it is clear that, apart from in exceptional cases where disclosure of a document might adversely affect the proper administration of justice, no rule or provision authorises parties to proceedings to disclose or prevents them from disclosing their own written submissions to third parties (judgment of 12 September 2007, API v Commission, T‑36/04, EU:T:2007:258, paragraph 88, and order of 3 April 2000, Germany v Commission, C‑376/98, EU:C:2000:181, paragraph 10) — may be applied to documents drawn up during an administrative procedure such as the procedure at issue in the present case.

48 Thirdly, it is necessary to reject the argument raised by the Commission and the interveners that the Commission was competent to examine the request for access to documents originating from the Republic of Poland since those documents were held by the Commission within the meaning of Article 2(3) of Regulation No 1049/2001.

49 In this regard, it should be noted at the outset that the applicant does not challenge the competence of the Commission to examine requests for access to documents originating from the Polish authorities and in the possession of the Commission where those requests are submitted directly to the Commission. It is clear that such documents are held by the EU institutions within the meaning of Article 2(3) of Regulation No 1049/2001. The applicant also does not challenge the fact that, in principle, the Commission may refuse access to such documents if they concern an ongoing infringement procedure.

50 It should nonetheless be held, as the applicant submits and contrary to what the Commission and the interveners claim in essence, that the fact that such documents are held by an EU institution within the meaning of Article 2(3) of Regulation No 1049/2001 cannot empower the Commission to adjudicate, of its own motion or in all circumstances, upon a request for access concerning them and, as the case may be, to refuse access to them.

51 As the applicant rightly maintains, in order for the Commission to be competent to adopt a decision granting or refusing access to a document which it holds, it must receive a request for access to that document validly submitted in accordance with Article 2(4) and Article 6 of Regulation No 1049/2001 by any natural or legal person referred to in Article 2(1) and (2) of that regulation, or validly forwarded by a Member State in accordance with Article 5 of that regulation. It is clear that, in the present case, the Commission did not receive a valid request either from the applicant or from the Republic of Poland.

52 Therefore, contrary to what the Commission, the Council and the Republic of Poland claim, Article 2(3) of Regulation No 1049/2001 cannot, in the circumstances of the case, serve as the legal basis for a decision refusing access to the documents at issue.

53 Fourthly, the argument that, in essence, the Commission was bound by the MFA’s referral of the request should be rejected. There is no legal basis for considering that the Commission would be bound by the decision of a Member State to forward to it a request for access to documents which do not originate from the Commission, by virtue of Article 5 of Regulation No 1049/2001, given that the conditions for that article to apply are not met. As the applicant rightly points out, while it can be considered that the decision of a Member State to forward a request which it has received for access to documents is binding in so far as the Commission cannot regard it as non-existent, it cannot, however, be considered that forwarding such a request in itself empowers the Commission of its own motion to adopt a substantive decision, that is to say, refusing or granting access to the documents requested.

54 In the light of all the foregoing, it should be concluded that the Commission, which was not competent to adjudicate upon the request for access to the documents at issue, infringed Article 5 of Regulation No 1049/2001.

55 The first part of the first plea in law must therefore be upheld and, accordingly, the contested decision must be partially annulled, without it being necessary to examine the other parts and other pleas put forward by the applicant.

Costs

56 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. Nonetheless, under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Republic of Poland, the Council and the Parliament must therefore bear their own costs.

On those grounds, THE GENERAL COURT (Fourth Chamber), hereby:

1. Annuls the decision of the European Commission of 18 February 2015 in so far as it refused a request for access to documents drawn up by the Republic of Poland, a request which was forwarded to it by the Republic of Poland on the basis of the second paragraph of Article 5 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents;

2. Orders the Commission to pay the costs;

3. Orders the Republic of Poland, the Council of the European Union and the European Parliament to bear their own costs.

Kanninen Schwarcz Iliopoulos Delivered in open court in Luxembourg on 28 April 2017. [Signatures]

( *1 ) Language of the case: Polish.