JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

13 December 2012

Case T‑199/11 P

Guido Strack

v

European Commission

(Appeal — Civil service — Officials — Articles 17, 17a, 19 and 90(1) of the Staff Regulations — Application for authorisation to disclose documents — Application for authorisation to publish a text — Application for authorisation to use findings before national judicial authorities — Inadmissibility of the action at first instance — No act adversely affecting an official — Article 90(a) of the Rules of Procedure)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 20 January 2011 in Case F‑132/07 Strack v Commission [2011] ECR-SC seeking to have that judgment set aside.

Held: The appeal is dismissed. Mr Guido Strack is ordered to bear his own costs and to pay those incurred by the European Commission. Mr Strack is ordered to pay the General Court EUR 2 000 in order to reimburse part of the costs which that Court had to incur.

Summary

1. Judicial proceedings — Reassignment of a case as a result of internal restructuring in the Civil Service Tribunal — Violation of the principle of the lawful judge — None

(Rules of Procedure of the Civil Service Tribunal, Arts 12 to 14)

2. Judicial proceedings — Res judicata — Scope

3. EU law — Principles — Fundamental rights — Respect guaranteed by the European Union Courts — Taking into consideration the European Convention on Human Rights — Right to fair legal process — Scope

(Art. 6(3) TEU)

4. Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissibility — Review by the General Court of the assessment of the evidence — Possible only where the clear sense of the evidence has been distorted

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11)

5. Actions brought by officials — Act adversely affecting an official — Definition — Measures producing binding legal effects

(Staff Regulations, Arts 90 and 91)

6. Actions brought by officials — Request under Article 90(1) of the Staff Regulations — Definition

(Staff Regulations, Art. 90(1))

7. Officials — Rights and obligations — Disclosure of information relating to the service — Obligation to obtain prior authorisation — Procedure for applying to disclose a document — Need to submit a sufficiently precise application to the administration

(Staff Regulations, Arts 11, first para., 17 and 19)

8. Officials — Rights and obligations — Disclosure of information relating to the service — Procedures for applying to disclose documents under Articles 17 and 19 of the Staff Regulations — Inapplicability of principles applicable under Regulation No 1049/2001

(Art. 339 TFEU; Staff Regulations, Arts 11, 12, 17 and 19; European Parliament and Council Regulation No 1049/2001, Art. 2(1))

9. Officials — Rights and obligations — Freedom of expression — Exercise — Limits

(Staff Regulations, Arts 11, 12, 17 and 19)

10. Officials — Rights and obligations — Duty to act in good faith — Concept — Scope

(Staff Regulations, Art. 11)

11. Judicial proceedings — Duration of the procedure before the Civil Service Tribunal — Reasonable time — Criteria for assessment

12. Judicial proceedings — Legal costs — Costs unreasonably or vexatiously caused to the General Court in an appeal — Order that the official reimburse those costs

(Rules of Procedure of the General Court, Art. 90(a))

1. See the text of the decision.

(see paras 26-30)

See:

C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paras 33 to 39; C‑182/99 P Salzgitter v Commission [2003] ECR I‑10761, paras 28 to 37

2. See the text of the decision.

(see para. 43)

See:

C‑224/01 Köbler [2003] ECR I‑10239, para. 38; C‑526/08 Commission v Luxembourg [2010] ECR I‑6151, para. 27 and the case-law cited therein

3. See the text of the decision.

(see paras 67-69)

See:

Judgment of 15 December 2011 in C‑411/11 P Altner v Commission, not published in the ECR, paras 13 to 15 and the case-law cited therein

4. See the text of the decision.

(see paras 74-75, 169, 172)

See:

C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I‑5281, para. 19; C‑551/03 P General Motors v Commission [2006] ECR I‑3173, para. 54; judgment of 6 December 2009 in C‑528/08 P Marcuccio v Commission, not published in the ECR, para. 51; C‑399/08 P Commission v Deutsche Post [2010] ECR I‑7831, para. 64; C‑260/09 P Activision Blizzard Germany v Commission [2011] ECR I-419, para. 53

T‑52/10 P Lebedef v Commission [2010] ECR-SC, para. 73

5. See the text of the decision.

(see paras 127, 150)

See:

Judgment of 10 January 2006 in C‑373/04 P Commission v Alvarez Moreno, not published in the ECR, para. 42 and the case-law cited therein

T‑135/89 Pfloeschner v Commission [1990] ECR II‑153, para. 11; T‑391/94 Baiwir v Commission [1996] ECR-SC I‑A‑269 and II‑787, para. 34; T‑293/94 Vela Palacios v ESC [1996] ECR-SC I‑A‑305 and II‑893, para. 22; T‑188/03 Hivonnet v Council [2004] ECR-SC I‑A‑199 and II‑889, para. 16; T‑144/08 Marcuccio v Commission [2008] ECR-SC I‑A‑2-51 and II‑A‑2-341, para. 25

6. See the text of the decision.

(see paras 129-130)

See:

23/74 Küster v Parliament [1975] ECR 353, para. 11

T‑110/94 Sánchez Mateo v Commission [1996] ECR-SC I‑A‑275 and II‑805, para. 26; T‑9/04 Marcuccio v Commission [2005] ECR-SC I‑A‑195 and II‑881, para. 36

7. An authority which has received an application for authorisation to publish on the basis of Articles 17 and 19 of the Staff Regulations must conduct a detailed examination of all the aspects of the case and must weigh up the interests involved in order to determine whether the interests of the Union or the public interest in receiving information must prevail. In that context, it is for the official seeking authorisation to provide all relevant information, in particular as to the precise documents in question, how widely they are to be distributed and the purpose of doing so, to enable the authority considering the application to reach a decision. That duty to provide precise information arises from the scheme of Articles 17 and 19 of the Staff Regulations itself, and also from the special relationship of trust which exists between the Union and its officials and from the duty of officials to cooperate with it in good faith, on the basis of the first paragraph of Article 11 of the Staff Regulations. Under that duty to provide precise information, an official seeking authorisation to publish documents must identify each individual document precisely, and must also provide a description of each document stating the reason for publication, thus enabling the authority in question to consider the application for publication efficiently. The duty to state the purpose of publication does not constitute an obligation on the official to justify the application in the context of a review of its merits. The requirement for applications to state the precise purpose of publication falls within a more general framework and is a precondition which enables the application to be examined, so that it falls within the scope of a review of the admissibility of the latter.

(see paras 131-132)

8. Principles which are applicable under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents cannot be applied by analogy to the authorisation procedures for the publication of documents under Articles 17 and 19 of the Staff Regulations. The purpose of Regulation No 1049/2001 is to give the general public a right of access to documents of the institutions. Consequently, in accordance with Article 2(1) of that regulation, beneficiaries of the right of access to documents of the institutions are citizens of the Union and natural or legal persons residing or having their registered office in the Union. Essentially, Regulation No 1049/2001 governs the Union’s relations with its citizens, while the Staff Regulations govern the Union’s relations with its officials. The difference between the procedures of Regulation No 1049/2001, on the one hand, and those of Articles 17 and 19 of the Staff Regulations, on the other, is justified by the special relationship of trust which exists between the Union and its officials, but which does not exist in the same form in respect of the citizens referred to by the provisions of Regulation No 1049/2001. The different requirements in dealing with applications to publish under Articles 17 and 19 of the Staff Regulations are necessary in order to preserve that relationship of trust and to put the Union institutions in a position to make sure that officials adapt their conduct in accordance with the interests of the institutions and the obligations incumbent on them under Article 339 TFEU. It is therefore the nature itself of the procedures governed by the Staff Regulations which allows different conditions to be imposed for applications to publish submitted by officials relating to information of which they have knowledge by reason of their duties, compared with those submitted by citizens.

(see para. 134)

9. See the text of the decision.

(see paras 137-139)

See:

C‑100/88 Oyowe and Traore v Commission [1989] ECR 4285, para. 16; C‑274/99 P Connolly v Commission [2001] ECR I‑1611, paras 40 and 43 to 46

10. See the text of the decision.

(see paras 179-180)

11. See the text of the decision.

(see paras 217, 218)

See:

C‑185/17 P Baustahlgewebe v Commission [1998] ECR I‑8417, para. 29; judgment of 26 March 2009 in C‑146/08 P Efkon v Parliament and Council, not published in the ECR, para. 52 and the case-law cited therein

12. See the text of the decision.

(see paras 229-232)