Case T‑264/15

Gameart sp. z o.o.

v

European Commission

(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)

Summary — Judgment of the General Court (Fourth Chamber), 28 April 2017

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 — Competence of the institution concerned to rule on the request for access — Conditions

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 — Refusal to grant access — Possibility of the national authorities to disclose

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Documents originating from the institutions held by national authorities — Decision of those authorities to forward, to an EU institution, an application for access concerning those documents — No binding force — Not possible to use that decision as the legal basis for adopting a decision granting or refusing access by the institution concerned

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Documents originating from the institutions held by national authorities — Applicability of national rules to requests for access — No possibility of forwarding the request for access to the institution concerned

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 para. 20)

Article 5 of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, 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. That article makes no provision for the possibility of forwarding to an EU institution a request for access to documents which originate from a Member State. In that regard, save 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 paras 34-36)

There is no legal basis for regarding an EU institution as being bound by the decision of a Member State to forward to it a request for access to documents which do not originate from it, by virtue of Article 5 of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, given that the conditions for that article to apply are not met. Thus, whilst 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 said institution cannot regard it as non-existent, it cannot, however, be considered that forwarding such a request in itself empowers that institution of its own motion to adopt a substantive decision, that is to say, refusing or granting access to the documents requested. Moreover, the principle of sincere cooperation, 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 an EU institution to examine a request for access, in the absence of any legal basis provided for in Regulation No 1049/2001. (see paras 44, 53)

A decision of an EU institution rejecting a request for access to documents drawn up by a Member State does not compel the national authorities of that State to adopt the same position. By analogy with the case-law of the Court of Justice regarding written submissions lodged before the EU judicature, no rule or provision authorises such an authority to disclose, or prevents it from disclosing, documents drawn up during an administrative procedure. (see para. 47)