11

The background to the dispute was set out in paragraphs 6 to 10 and 15 of the judgment under appeal, in the following terms: ‘6 By letter of 30 March 2011, … Patrick Breyer, submitted to the … Commission an application for access to documents pursuant to Article 6 of Regulation No 1049/2001. 7 The requested documents related to infringement proceedings brought in 2007 by the Commission against the Federal Republic of Germany and the Republic of Austria concerning the transposition of Directive [2006/24]. More precisely, [Mr Breyer] applied for access to all documents relating to the administrative procedures conducted by the Commission and to all documents relating to the court proceedings in Case C‑189/09Commission v Austria (EU:C:2010:455). 8 On 11 July 2011, the Commission rejected the application submitted by [Mr Breyer] on 30 March 2011. 9 On 13 July 2011, [Mr Breyer] made a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001. 10 By decisions of 5 October and 12 December 2011, the Commission granted [Mr Breyer] access to some of the requested documents concerning the infringement proceedings brought against the Federal Republic of Germany. In those decisions, the Commission also informed [Mr Breyer] of its intention to adopt a separate decision in respect of the documents relating to Commission v Austria … (EU:C:2010:455). … 15 On 3 April 2012, in response to [Mr Breyer’s] confirmatory application of 13 July 2011, the Commission adopted the decision bearing reference Ares (2012) 399467 (“the decision of 3 April 2012”). By that decision, the Commission ruled on access by [Mr Breyer], on the one hand, to documents in the administrative file relating to the infringement proceedings, referred to in paragraph 7 above, brought against the Republic of Austria and, on the other, to documents relating to the court proceedings in Commission v Austria … (EU:C:2010:455). In respect of the latter, the Commission inter alia refused access to the written submissions lodged by the Republic of Austria in those court proceedings (“the written submissions at issue”) on the ground that those submissions did not fall within the scope of Regulation No 1049/2001. First of all, according to the Commission, under Article 15(3) TFEU the Court of Justice of the European Union, in its capacity as an institution, is subject to the rules on access to documents only when exercising its administrative tasks. Second, the Commission states that the written submissions at issue were made to the Court, whereas the Commission, as a party to the proceedings in Commission v Austria … (EU:C:2010:455), received only copies. Third, the Commission considers that Article 20 of the Statute of the Court of Justice of the European Union provides for the communication of written pleadings relating to court proceedings only to the parties to those proceedings and to institutions whose decisions are in dispute. Fourth, according to the Commission, in [the judgment of 21 September 2010,] Sweden and Others v API and Commission (C‑514/07 P, C‑528/07 P and C‑532/07 P, … EU:C:2010:541), the Court did not address the question whether the institutions should grant access to the written submissions of another party to court proceedings. Consequently, with regard to written submissions lodged in court proceedings, only written submissions submitted by the institutions, and not those lodged by other parties, fall within the scope of Regulation No 1049/2001, it being understood that if a different interpretation were adopted, the provisions of Article 15 TFEU and specific rules stemming from the Statute of the Court of Justice and the Rules of Procedure of the Court of Justice would be circumvented.’