Case T-411/09

Ioannis Terezakis

v

European Commission

(Access to documents – Regulation (EC) No 1049/2001 – Partial refusal of access – Contested act replaced in the course of the proceedings – Refusal to amend the claims – No need to adjudicate)

Summary of the Order

Actions for annulment – Interest in bringing proceedings – Decision replacing the contested decision during the proceedings – Refusal on the part of the applicant to amend his claims as a result – Application devoid of purpose – No need to adjudicate

(Art. 230 EC)

If, in an action for annulment, the subject-matter of the action disappears in the course of the proceedings, the Court cannot rule on the substance, since such a Court decision cannot procure an advantage for the applicant. The disappearance of the subject-matter of the proceedings can inter alia result from the withdrawal or replacement of the contested act in the course of the proceedings.

While the legal effect of a repealed act expires, unless otherwise specified, on the date of its repeal, an act which is withdrawn and replaced disappears completely from the legal order of the European Union. Withdrawal of an act therefore normally takes effect ex tunc.

An application for annulment may, exceptionally, not become devoid of purpose despite the withdrawal of the act whose annulment is sought in circumstances where the applicant nevertheless retains a sufficient interest in obtaining a judgment formally annulling it. That is not the case where, despite the adoption by the Commission of a new decision replacing the contested decision in the course of the proceedings, the applicant explicitly states that he does not wish to adapt his claims as he is entitled to do and does not adduce any evidence to substantiate an interest in obtaining a judgment declaring the formal unlawfulness of the contested decision.

(see paras 14-18, 20)

ORDER OF THE GENERAL COURT (Sixth Chamber)

12 January 2011( )

(Access to documents – Regulation (EC) No 1049/2001 – Partial refusal of access – Contested act replaced in the course of the proceedings – Refusal to amend the claims – No need to adjudicate)

In Case T‑411/09,

Ioannis Terezakis, residing in Brussels (Belgium), represented initially by B. Lombart, and subsequently by P. Synoikis, lawyers,

applicant,

v

European Commission, represented by L. Flynn and C. ten Dam, acting as Agents,

defendant,

APPLICATION for annulment of the Commission decision of 3 August 2009 refusing the applicant access to some parts of and the annexes to certain letters exchanged between the European Anti-Fraud Office (OLAF) and the Greek Ministry of Finance regarding tax irregularities in connection with the construction of Spata airport at Athens (Greece),

THE GENERAL COURT (Sixth Chamber),

composed of E. Moavero Milanesi, President, N. Wahl (Rapporteur) and S. Soldevila Fragoso, Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute and procedure

1 By email dated 24 April 2009, the applicant, Mr Ioannis Terezakis, requested, pursuant to 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), access to the correspondence between the Commission of the European Communities and the Greek authorities regarding possible tax irregularities in connection with the construction of Spata airport in Athens (Greece).

2 By email dated 8 June 2009, the director of Directorate C ‘Operational and Policy Support’ of the European Anti-Fraud Office (OLAF) granted partial access to five documents to which the applicant had sought access. The documents in question were:

– a letter from OLAF to the Greek Ministry of Finance, dated 15 October 2004;

– a letter from the Greek Ministry of Finance to OLAF, dated 20 October 2006;

– a letter from OLAF to the Greek Ministry of Finance, dated 22 December 2006;

– a letter from the Greek Ministry of Finance to OLAF, dated 31 January 2007;

– a letter from OLAF to the Greek Ministry of Finance, dated 27 July 2007.

3 By letter of 19 June 2009 addressed to the Secretary General of the Commission, the applicant made a confirmatory application requesting the Commission to revise its response and to grant him full access to the documents referred to in paragraph 2 above, including the annexes thereto, as well as to an email of 18 July 2007 sent by OLAF to the Greek authorities.

4 By letter of 3 August 2009 (‘the contested decision’), the Director-General of OLAF confirmed the refusal set out in the decision of 8 June 2009. In support of that confirmation, he referred to the derogations provided for in Article 4(1)(b) and (2) of Regulation No 1049/2001. As regards the applicant’s request for access to the email of 18 July 2007, he mentions the fact, first, that the email was not mentioned in the initial application and second, that the email was not registered in the OLAF case file as it was an informal reminder.

5 By application lodged at the Registry of the General Court on 13 October 2009, the applicant brought this action for annulment of the contested decision.

6 By letter received at the Court Registry on 4 February 2010, the Commission requested the Court to declare that the action had become devoid of purpose, following its decision of the same day withdrawing and replacing the contested decision.

7 In its decision of 4 February 2010, the Commission indicated that the applicant had been granted access to the documents originally applied for more extensive than that granted by the contested decision.

8 In his observations on the request for a ruling that there was no need to adjudicate, lodged at the Court Registry on 9 March 2010, the applicant opposed that request. In that regard, he claims that the Commission decision of 4 February 2010 did not completely eliminate the whole subject-matter of his application, for the Commission has still not granted him access to certain documents covered by his application of 19 June 2009, which gave rise to the contested decision.

9 By order of 28 April 2010, the General Court reserved for final judgment its decision on the Commission’s application seeking a declaration that the action had become devoid of purpose and reserved the costs.

10 In his reply, the applicant states that he had not brought an action for annulment of the Commission’s decision of 4 February 2010, and requests the Court to adjudicate on the basis of the contested decision and not to take account of the Commission’s decision of 4 February 2010. In the alternative, the applicant claims that, in the light of that decision, he could agree to the Commission’s application for a declaration that there is no need to adjudicate of 4 February 2010, on condition that the Commission agree to bear the costs he has incurred. In the rejoinder, the Commission indicates in particular that it has not has not reached an agreement with the applicant on an acceptable amount to cover the costs of the present proceedings.

Forms of order sought by the parties

11 The applicant claims that the Court should:

– annul the contested decision;

– order the Commission to pay the costs.

12 The Commission contends that the Court should:

– principally, declare that the action has become devoid of purpose and that there is no need to adjudicate on it;

– in the alternative, dismiss the action as unfounded;

– order the applicant to pay the costs.

Law

13 Having regard to the Commission’s application of 4 February 2010 for a declaration that there is no need to adjudicate, the applicant’s observations of 9 March 2010 on that application and the reply, the Court considers it appropriate to settle the preliminary issue without an oral procedure, pursuant to Article 114(3) of its Rules of Procedure.

14 It should be borne in mind at the outset that if the subject-matter of the action disappears in the course of proceedings, the Court cannot rule on the substance, since such a Court decision cannot procure an advantage for the applicant (Joined Cases T‑355/04 and T‑446/04 Co-Frutta v Commission [2010] ECR II‑1, paragraphs 43 to 45).

15 The disappearance of the subject-matter of the proceedings can inter alia result from the withdrawal or replacement of the contested act in the course of the proceedings (Joined Cases 5/60, 7/60 and 8/60 Meroni and Others v High Authority [1961] ECR 107, p. 111; order in Case 82/85 Eurasian Corporation v Commission [1985] ECR 3603, paragraph 11; and order in Case T‑26/97 Antillean Rice Mills v Commission [1997] ECR II-1347, paragraphs 14 and 15).

16 In that context, it should be pointed out that, while the legal effect of a repealed act expires, unless otherwise specified, on the date of its repeal (see, to that effect, Joined Cases 16/59, 17/59 and 18/59 Geitling and Others v High Authority [1960] ECR 17, p. 26), an act which is withdrawn and replaced disappears completely from the legal order of the Union. Withdrawal of an act therefore normally takes effect ex tunc (see, to that effect, Case T‑184/01 IMS Health v Commission [2005] ECR II‑817, paragraphs 34 to 41, and the order of 9 September 2010 in Case T‑120/09 Phoenix-Reisen and DRV v Commission, not published in the ECR, paragraph 23 and the case-law cited).

17 In addition, it must be held that an application for annulment may, exceptionally, not become devoid of purpose despite the withdrawal of the act whose annulment is sought in circumstances where the applicant nevertheless retains a sufficient interest in obtaining a judgment formally annulling it (see Case T‑211/02 Tideland Signal v Commission [2002] ECR II‑3781, paragraphs 48 and 49 and the case-law cited).

18 In the present case, it is common ground that the applicant seeks only annulment of the contested decision. Despite the adoption by the Commission of the decision of 4 February 2010 replacing the contested decision in the course of the proceedings, in his reply the applicant explicitly stated that he did not wish to adapt his claims in order to cover the Commission’s decision of 4 February 2010, even though, according to settled case-law, he was entitled to do so (see Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, paragraphs 28 and 29 and the case-law cited).

19 In addition, it is clear from the unequivocal wording of the Commission’s decision of 4 February 2010 that it had decided to ‘withdraw the [contested] decision … and to adopt a new decision in reply to the applicant’s confirmatory application of 19 June 2009’. Consequently, in the light of the case-law cited in paragraphs 15 to 17 above, this action has clearly become devoid of purpose.

20 It should be noted that the withdrawal of the contested decision and the adoption of the Commission decision of 4 February 2010 gave the applicant the result that he sought to obtain by the present action, namely, the elimination of the contested decision from the legal order of the Union. Moreover, it must be held that the applicant has not adduced any evidence to substantiate an interest in obtaining a judgment declaring the formal unlawfulness of the contested decision.

21 It follows from all the foregoing considerations that there is no longer any need to adjudicate on the present action.

Costs

22 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

23 The Court considers that the proper application of the above provision, in the specific circumstances of this case, requires each party to bear its own costs.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby orders:

1. There is no need to adjudicate on the action.

2. The parties shall bear their own costs.

Luxembourg, 12 January 2011.

E. Coulon E. Moavero Milanesi