CELEX: 62018CC0761
Language: en
Date: 2020-07-16 00:00:00
Title: Opinion of Advocate General Bobek delivered on 16 July 2020.

OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 16 July 2020(1)

Case C‑761/18 P

Päivi Leino-Sandberg

v

European Parliament

(Appeal — Access to documents of the EU institutions — Regulation (EC) No 1049/2001 — Request for access by a third party to a document that was being challenged before the General Court at the time of the request — Refusal by the European Parliament to grant access on the basis of the protection of court proceedings — Annulment action — Declaration that there is no need to adjudicate due to the availability of the requested document on the internet blog of its addressee — Purpose of the annulment action — Continued interest in bringing proceedings — Judicial consequences deriving from the publication by the addressee of a version of the requested document)

I.      Introduction

1.        For sci-fi fans, ‘travelling without moving’ will always be associated with Frank Herbert’s Dune, (2) particularly when portrayed through the surreal fantasy of the 1984 David Lynch movie. (3)

2.        Nonetheless, is it possible, under Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, (4) for there to be ‘disclosing without giving’? That is, in a condensed metaphorical nutshell, the key question of the present appeal. 

3.        Ms Päivi Leino-Sandberg sought access to a document of the European Parliament. Her request was refused on the ground that the requested document was being challenged by its addressee before the General Court. (5) According to the Parliament, it could not, therefore, be disclosed on grounds of the protection of court proceedings pursuant to Article 4(2), second indent, of Regulation No 1049/2001. Ms Leino-Sandberg  brought an action for the annulment of that decision before the General Court. However, without the knowledge of either Ms Leino-Sandberg  or the Parliament, a version of the requested document had already been made available on a (private) blogspot, posted there by the addressee of that document. On that basis, the General Court subsequently declared  that there was no need to adjudicate on the action because the requested document was already available on the internet.

4.        What are the legal consequences deriving from the online publication, by a third party, of a version of a document that has been the subject of a request for access under Regulation No 1049/2001 on proceedings pending before the EU Courts? Can an action against the refusal to grant access to that document be said to have lost its object, with the applicant having no further interest in the outcome of the case, while the original negative decision of the institution refusing access is still standing and the applicant was never given any authentic version of the document requested by the institution in question?
II.    EU legal framework

A.      Regulation No 1049/2001

5.        Article 1 of Regulation No 1049/2001  states that:
‘The purpose of this Regulation is:
(a)      to define the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission (hereinafter referred to as “the institutions”) documents provided for in Article 255 of the EC Treaty in such a way as to ensure the widest possible access to documents,
(b)      to establish rules ensuring the easiest possible exercise of this right, and
(c)      to promote good administrative practice on access to documents.’

6.        Article 2, entitled ‘Beneficiaries and scope’, provides that:
‘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.
…’

7.        Article 3 lays down some definitions for the purpose of Regulation No 1049/2001:
‘…
(a)      “document” shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility;
(b)      “third party” shall mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and third countries.’

8.        Article 4 of Regulation No 1049/2001 reads as follows:
‘1.      The institutions shall refuse access to a document where disclosure would undermine the protection of:
(a)      the public interest as regards:
–        public security,
–        defence and military matters,
–        international relations,
–        the financial, monetary or economic policy of the Community or a Member State;
(b)      privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.
2.      The institutions shall refuse access to a document where disclosure would undermine the protection of:
–        commercial interests of a natural or legal person, including intellectual property,
–        court proceedings and legal advice,
–        the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure.
…
7.      The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years …’

9.        According to Article 6(1) of Regulation No 1049/2001, ‘the applicant is not obliged to state reasons for the application’.

10.      Article 10(2) of Regulation No 1049/2001 provides that:
‘If a document has already been released by the institution concerned and is easily accessible to the applicant, the institution may fulfil its obligation of granting access to document by informing the applicant how to obtain the requested document.’
III. Facts and proceedings

A.      Background to the dispute and the proceedings before the General Court

11.      The facts of the case and the proceedings before the General Court, as stated in the order under appeal (6) and emerging from the case file,  can be summarised as follows.

12.      On 8 July 2015, by Decision A(2015) 4931 (‘the requested document’), the European Parliament refused to grant Mr Emilio De Capitani access to documents LIBE‑2013‑0091‑02 and LIBE‑2013‑0091‑03 containing the fourth column of two tables drawn up in the context of the trilogues that were ongoing at the time. On 18 September 2015, Mr De Capitani brought an action for annulment before the General Court against that refusal decision (‘the De Capitani case’).  

13.      In the meantime,  apparently on 12 July 2015, Mr De Capitani had published an annotated version of the requested document  on a blog. (7) However, in the open, html version of the blogspot, parts of the text reproduced appear to have been edited. Parts of sentences or entire paragraphs have been put in bold, others italicised, some sentences are underlined, and there seems to be some omissions. There are also several insertions in the text by the author of the blog, in which he expressed  his observations or disagreement with regard to the statements made by the Parliament. 

14.      In December 2016, while the De Capitani case was still pending before the General Court,  Ms Päivi Leino-Sandberg (‘the appellant’), then a Professor of International and European Law at the University of Eastern Finland, made a request to  the Parliament (‘the respondent’)  for access to the Parliament decision regarding Mr De Capitani’s request.  She stated that access to the requested document was necessary for the completion of two research projects that she was leading.  

15.      On 23 January 2017, the  respondent refused to grant the appellant access to the requested document on the ground that its disclosure would undermine the protection of court proceedings provided for by the second indent of Article 4(2) of Regulation No 1049/2001. The appellant subsequently filed a confirmatory application.

16.      On 3 April 2017, by Decision A(2016) 15112 (‘the contested decision’), the respondent  confirmed its refusal to grant the appellant access to the requested document. In particular, it put forward the fact that the refusal decision regarding Mr De Capitani was then being challenged before the General Court and the public disclosure thereof would affect the right to a fair trial and the equality of arms between the parties. Additionally, it would to a broader extent have the effect of exposing judicial activities to external pressure and would inevitably disturb the serenity of the proceedings.

17.      On 6 July 2017, the appellant lodged an  action for annulment of the contested decision before the General Court. The respondent subsequently submitted its response.

18.      On 14 November 2017, by a measure of organisation of procedure adopted pursuant to Article 89 of its Rules of Procedure, the General Court  brought to the appellant’s attention the fact that Mr De Capitani had made public, on the abovementioned blog, (8) the requested document. The General Court requested the appellant to indicate whether she had obtained satisfaction by the fact that she was able to access the requested document online.

19.      On 30 November 2017, the appellant replied that she was not aware that the requested document was available online until the General Court brought it to her attention. She stated that she had not obtained satisfaction by the fact that the document at issue was available on the internet.

20.      Subsequently, the General Court instructed the parties to focus on the admissibility of the appellant’s action in their second exchange of pleadings. In January 2018, the appellant lodged her reply. On 9 March 2018, the respondent submitted its rejoinder. The latter notably stated that it too had been unaware of the publication online of the requested document until the General Court had pointed it out. In its view, the fact that the appellant was now aware of that publication made her annulment action devoid of purpose. The Parliament thus applied in its rejoinder for a declaration that there was no need to adjudicate. 

21.      By letters of 15 March 2018, the General Court informed the parties that the Parliament’s application for a declaration that there was no need to adjudicate, had not been dealt with because it had not been submitted by a separate act, as is required under Article 130(2) of its Rules of Procedure. 

22.      On 27 March 2018, by a separate document, the Parliament lodged an application for a declaration that there was no need to adjudicate. In the alternative, the respondent maintained that the General Court should dismiss the appellant’s action as inadmissible or unfounded and order her to pay the costs.

23.      On 5 April 2018, the General Court invited the appellant to file observations on the respondent’s application that there was no need to adjudicate.  In her reply, the appellant  pointed out that neither she nor the respondent had been aware of the fact  that Mr De Capitani had placed the requested document on a blog on the internet until they were informed of it by the General Court. She maintained that the term ‘published’ is a rather unsuitable term when a document has been placed on a blog by a private party somewhere in cyberspace. She further stated that a refusal decision of the Parliament that is still valid cannot be shielded from judicial review simply because someone put the requested document on a blog. 

24.      In the meantime, on 22 March 2018, while the procedure at first instance in the present case was still ongoing, the General Court decided the De Capitani case. It annulled the Parliament decision regarding Mr De Capitani, stating that the  Parliament infringed the first subparagraph of Article 4(3) of Regulation No 1049/2001 by refusing to disclose, whilst the procedure was ongoing, the fourth column of the documents at issue, on the ground that to do so would have seriously undermined its decision-making process. (9)
B.      The order under appeal and the proceedings before the Court of Justice

25.      In its order of 20 September 2018 (‘the order under appeal’), (10) the General Court held that there is no longer any need to adjudicate on the action brought by the appellant. 

26.      The General Court stated essentially that an action for annulment of a decision refusing access to documents no longer has any purpose when the documents in question have been made accessible by a third party and the applicant can access them and use them in a way which is as lawful as if he or she had obtained them as a result of his  or her application under Regulation No 1049/2001. (11) Given that a full version of the requested document was made accessible by the addressee of the document himself, there was no doubt that the appellant could use it in an entirely legal manner for the purposes of her university work. (12)

27.      Furthermore, according to the General Court, it did not appear that the alleged unlawfulness of the refusal of access was likely to recur in the future outside of the specific circumstances of the case. The respondent’s refusal to grant access to the requested document was specific to the case and of an ad hoc nature because, first, the De Capitani case was still pending and, second, the context of the appellant’s request was characterised by intense debates in blogs and views that were likely to influence the respondent’s own position in the case. (13) Furthermore, since it was the addressee himself and not the respondent who disclosed the requested document,  the appellant could not allege that the latter employed delaying tactics consisting in waiting until a potential action was brought to the attention of the  EU Courts before disclosing the document — the access to which was requested. (14)

28.      The General Court therefore concluded that the action brought by the appellant had become deprived of purpose in view of the disclosure, by Mr De Capitani, of the requested document. Thus, there was no longer any need to adjudicate thereon, nor on the applications to intervene lodged by the Republic of Finland and the Kingdom of Sweden. The General Court ordered each party to bear its own costs. It also ordered the Republic of Finland and the Kingdom of Sweden to each bear their own costs.

29.      By the present appeal, the appellant asks the Court to set aside the order under appeal, to provide a final judgment on the matter and to order the respondent to pay the costs of the proceedings, including the costs of the intervening parties.

30.      In support of her appeal, the appellant raises two grounds. First, she submits that the General Court erred in law in holding that there was no longer a purpose to the action. Second, it erred in law and committed procedural errors in holding that the appellant no longer had any interest in bringing proceedings.

31.      In its response, the Parliament argues that both grounds of appeal should be dismissed either as partly inadmissible and partly unfounded, or as unfounded.

32.      The appellant and the Parliament have also submitted respectively a reply and a rejoinder.

33.      The Republic of Finland and the Kingdom of Sweden have intervened in support of the appellant. 
IV.    Assessment

34.      This Opinion is structured as follows. I  shall start with examining the relationship between the two grounds of appeal raised by the appellant, and in particular the difference between the purpose (or the object) of an action for annulment and the (residual) further interest in such legal proceedings in the event that the initial object of proceedings indeed loses its purpose  (A). I shall then  assess the first ground of appeal (B). Since I take the view, in agreement with the appellant, that the object of the present dispute did not fall away, and therefore the first ground of appeal should be upheld, I will then only briefly examine the second ground of appeal (C), before coming to a conclusion concerning the scope of the present appeal (D).
A.      The relationship between the appellant’s two grounds of appeal

35.      In her appeal, the appellant raised two pleas: first, the General Court erred in law in holding that there was no longer a purpose to the action; second, it erred in law in holding that the appellant no longer had any interest in bringing proceedings. 

36.      As far as the relationship between those two grounds of appeal is concerned, the appellant contends that the order under appeal has unduly conflated the supposed lack of purpose of the annulment action and the interest in bringing proceedings. These  are nonetheless  two different legal concepts which ought to be assessed separately. The respondent is of the view that the need for a continuation of the purpose of the action must be evaluated together with the continued interest in bringing proceedings.

37.      According to the Court’s case-law, the applicant’s  interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which it will be inadmissible. That objective of the dispute must continue, like the interest in bringing proceedings, until the final decision  failing which there will be no need to adjudicate,  which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it. (15)

38.      An applicant may retain an interest in claiming the annulment of a decision in order to be restored to his or her original position or in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated. (16)

39.      I agree with the respondent that there might be some degree of overlap between the purpose of the annulment action and the continued interest in bringing proceedings. It is also evident that the terminology employed is not always consistent. For example,  the ‘purpose’ of the dispute is used interchangeably with its ‘object’, ‘subject matter’, or even ‘objective’. Moreover, when it is clear that the requested document has been released  by the institution in the meantime, and thus the applicant’s original request has in essence been satisfied, the Court then tends to examine interest in one breath, leading to the potential disappearance of the ‘purpose’ of the action examined as one factor in the overall context of there being any ongoing interest to act. (17)

40.      However, as to its logic, the Court indeed distinguishes in general between two types of interest: first, the applicant’s initial interest in bringing proceedings, and second, any  residual, further  interest on the part  of the applicant that remains even after a certain event has put an end to the initial interest.

41.      Translated into more specific terms within the actual context of disputes regarding access to documents under Regulation No 1049/2001, the object of an action (18) brought for the enforcement of access rights is the annulment of the contested decisions. That is certainly the formal object of the action: to have the unfavourable decision annulled, thus forcing the institution at issue to decide afresh. An action for the annulment of a negative decision on access to a requested document may also be said to have an underlying  substantive object, or rather, in that sense, an (ulterior) purpose: to obtain the document concerned by the original request for access. 

42.      An applicant retains the initial interest (and the action cannot be devoid of its object) unless one of the two alternatives occurs: (i) the challenged decision is formally  withdrawn (the formal disappearance of the object of the dispute), or (ii) the institution grants the applicant full access to the requested document, without necessarily revoking the previous decision,  essentially, thereby providing full satisfaction for the applicant (the material disappearance of the object of the dispute). 

43.      Next, assuming that such an initial interest has indeed disappeared, the applicant can still retain a  residual interest  in bringing proceedings, or, as is more frequently the case in practice,  in seeing proceedings brought to a final judicial pronouncement, despite receiving the document in the course of those proceedings. 

44.      In the latter regard, the case-law of the Court reflects two scenarios in particular. First, an applicant maintains an interest in bringing proceedings ‘in order to be restored to its original position’. It is on that basis that, for instance, the Court has held that an application for annulment may retain an interest as the basis for possible proceedings for damages. (19) Such an  interest is to be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness. (20) Second, an applicant maintains an interest to act ‘to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated’. (21)

45.      In sum, the initial interest in bringing an annulment action will persist until the challenged decision is either formally annulled or until the applicant obtains  material satisfaction in full. Any other (further or residual) interest will relate to all the other considerations which might  prompt the Court nevertheless to deliver a judgment on the matter even if the initial object of the action has disappeared. 

46.      Significantly, as to the order of examination, the two categories are two successive (chrono-)logical steps. It is only if, in the first step, it is found that the applicant has lost the initial interest in bringing the action, that it would  be necessary to examine the second one. Conversely, as long as the applicant has  neither formally nor materially been fully satisfied, there is no need to dwell on any potential other or further interest in obtaining an annulment decision from an EU Court. 

47.      For these reasons, I consider it useful in the present case to examine each of the two grounds of appeal,  as advanced by the appellant, successively. They indeed represent the logical order in which the issue of interest in litigation should properly be examined. 
B.      The first ground of appeal

48.      The first ground of appeal essentially boils down to whether the appellant has obtained material satisfaction, and therefore whether the original object (and the initial interest in bringing the action) fell away. 

49.      The appellant, supported by the Finnish and Swedish Governments, argues that that is not the case. The respondent has not withdrawn the contested decision. As follows from ClientEarth, (22) the publication of documents to which access has been requested is not a relevant factor to determine whether the purpose of an action remains. Furthermore, the appellant also maintains that she has never received any authentic version of the requested document from the Parliament. In her research, she cannot rely on some partial and non-authentic information pulled down from private blogs on the internet. 

50.      According to the respondent, the appellant’s action has become devoid of purpose following the discovery of the publication of the requested document by its addressee. The blog where Mr De Capitani posted the document was very likely to be known to the appellant since her own contributions have been posted there. The appellant could  therefore access that document and use it in a legal manner for the purpose of her academic research or for any other purpose. 

51.      It is not apparent from the case file of the General Court, nor has it been brought to the attention of this Court, that the Parliament would have ever formally revoked its original negative decision. Thus, that scenario has not materialised in the present case and is accordingly  of no concern here.

52.      Has the appellant  obtained material  satisfaction, with the original object (and the initial interest in bringing the action) thus falling away? 

53.      The issue of initial as well as continuing interest in pursuing a case is, as already apparent from the previous section, a matter of procedure before the EU Courts. Is there still a case, in view of the changed circumstances? Although to a large extent independent and transversal a category, applicable to any type of litigation before the EU Courts, the issue of interest in pursuing a case is equally tied to the subject matter or area of law in which a case is brought. How else could it be assessed whether or not the action is devoid of any purpose, and thus potentially spurious, if the entitlement the applicant is seeking to enforce under EU law is not clear?  

54.      For that reason, in what follows, I start with precisely such a reminder: what, in fact, are the rights of individuals (and the correlating obligations of the institutions) under Regulation No 1049/2001, which  an applicant seeking the annulment of a negative decision on access issued by an institution can be said to enforce? (1) Next, I shall turn to what appears to be the test used by the General Court in the present case when determining whether an applicant obtained material satisfaction (2). I will then, using the example of the present case, demonstrate why such a test is conceptually wrong and,  in practical terms,  untenable (3), before concluding with what such a test should entail (4). 
1.      The rights of individuals under Regulation No 1049/2001 

55.      Article 2(1) of Regulation No 1049/2001 expressly provides for a (subjective) right of access to European Parliament, Council and Commission documents  to ‘any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State’. According to Article 2(3) of the regulation, that right extends in substance 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’.

56.      However, what about documents that have already been made available to the public, which are in the public domain? The legislative history of Regulation No 1049/2001, as well as the system of the current regulation, provide a rather clear answer in that regard. 

57.      First, as far as the legislative history is concerned, the Commission draft proposal  laid down an exception to access to documents by providing that the regulation was not to apply to ‘documents already published or accessible to the public by other means’. (23) However, during the legislative process, the Parliament not only expressed the intention to delete that draft provision, but to introduce a provision (draft Article 2a(1)),  stating explicitly that ‘the right of access to documents of the institutions includes access to published documents’. (24) It would thus appear that it was the Parliament who  intended to include documents already available to the public by other means, (thus documents that were made generally accessible by the EU institution itself or by a third party), among those documents the access to which may be requested from an EU institution under Regulation No 1049/2001. 

58.      Second, as to its internal logic, the current version of the regulation seems to adopt a median position. In the specific case of documents that have already been released by the institution concerned and are easily accessible to the applicant, Article 10(2) of Regulation No 1049/2001  contains a modified obligation of an EU institution vis-à-vis the applicant. In such circumstances, the EU institution is not obliged to provide the requested document, but may just inform the applicant about how he or she can obtain the requested document. 

59.      I wish to stress two points that flow clearly from the text of Article 10(2) of the regulation. First, a document which has already been released by the institution concerned could perhaps, with some generosity of spirit, be interpreted as meaning that the document has been released by either the institution in question or perhaps also by any other institution, provided of course there is no doubt about the authenticity of the requested document. (25) Second, in any case, there always is the  ‘official endorsement’ of the copy referred to when informing the applicant about how to obtain the requested document.

60.      Regulation No 1049/2001 is silent on documents being made available to the public by third parties. It does define ‘third parties’ in its Article 3(b),  but for different reasons, notably for access to third-party documents under Article 4(4). It certainly does not envisage the discharge of the obligation of granting access by a third party, in any case, not by a private party. (26) That is, however, entirely logical.

61.      First,  as regards  the legislative text,  Regulation No 1049/2001 does not provide for any exception concerning the fact that the requested document has been made public by a third party.  The exceptions to access are set out in an exhaustive manner in Article 4 of Regulation No 1049/2001. 

62.      Second, as regards its purpose, Article 1 and recitals 1, 2, 3 and 4 of Regulation No 1049/2001 indicate that its aim  is to ensure transparency and openness within the EU institutions covered by that regulation and to guarantee to any EU citizen the widest possible access to EU documents and the easiest possible exercise of that right through a direct dialogue between the institution and the applicant. Thus, the latter is entitled to an answer from the EU institution concerned, even with regard to documents in the public domain.

63.      Third, the ‘official endorsement’ by the institution of the document in question under Article 10(2) is crucial for its  completeness, integrity, authenticity and lawful use.  Naturally, no one would be allowed to present information they found somewhere on the internet as an official document or as  setting out the position of the institution, until and unless they received the original of the document, or an official reply, or at any rate a clear endorsement by that institution that what had been found  actually originates from that institution and reflects its official position. Any such information under Article 10(2) is all the more important where the EU institution has initially refused to grant access to it on the basis of the exceptions of Article 4 of the regulation. 

64.      In sum, it clearly follows from Regulation No 1049/2001 that EU citizens have a subjective right to access. When faced with an individual request, an institution has essentially three options. First, to grant the access. Second, to refuse the access, explaining why the access cannot be granted. Third, if it wishes to, and in effect as a method for providing a positive response under the first option, it may provide an answer pursuant to Article 10(2). The institution may direct the applicant to where he or she may locate the requested information  himself or herself, which is easily accessible, thereby also guaranteeing the authenticity and trustworthiness of the information to which it thusly referred.

65.      However, the making available of a document to the public by a third party neither fulfils nor extinguishes the right of applicants to receive an adequate answer from the EU institution concerned under Regulation No 1049/2001. Neither the text nor the spirit of that regulation suggests that the clear and specific obligations incumbent on EU institutions can in effect be  outsourced  to a third party.
2.      Jurašinović

66.      Typically, a dissatisfied applicant who believes that his or her rights guaranteed under Regulation No 1049/2001 have been infringed will bring  an action for annulment of a negative decision taken by the institution in question. In the context of such an action, the initial and ongoing object of the dispute may materially disappear if, typically in the course of the proceedings, the institution in question eventually provides full access to what was requested, thus materially adopting a positive decision and granting access under Article 10(1). It would equally be conceivable that the institution communicates with the applicant  during the course of such proceedings, informing him or her that the document is now publicly accessible under Article 10(2), and providing that person with information about the location of the document, thereby  guaranteeing the integrity and authenticity of that document. 

67.      Unless one would attempt to interpret,  as a decision under Article 10(2) of Regulation No 1049/2001, (27) either the rejoinder of the Parliament or its subsequent application for a declaration that there was no need to adjudicate in the proceedings before the General Court (the substance of that decision having been, perhaps somewhat surprisingly, delivered to the applicant via the General Court), there was clearly no such material satisfaction in the present case. 

68.      However, in paragraphs 27 and 28 of the order under appeal, primarily relying on the judgment in Jurašinović  v Council (‘Jurašinović’), (28) the General Court held that: ‘an action for the annulment of a decision refusing access to documents no longer has any purpose when the documents in question have been made accessible by a third party and the applicant can access them and use them in a way which is as lawful as if he had obtained them as a result of his application under Regulation No 1049/2001 … That case-law applies a fortiori in the present case given that a full version of the requested document was made accessible by the addressee of the document himself, with the effect that there is no doubt that the applicant can use it in an entirely legal manner for the purposes of her university work.’

69.      As already outlined above, the general procedural category of interest to act may be conceived of as being  , to some degree, independent from the substantive rights that any such action seeks to enforce. (29) Thus, such a procedural category might not entirely match the substance. In addition, there ought to be a reasonable degree of pragmatism involved in defining the category of interest to act. Indeed, the EU Courts, similar to other courts, are not, at least as far as actions for annulment are concerned, consultative legal agencies which ought to be seised by persons without any discernible interest in the outcome of the case. 

70.      On the other hand, there are some limits to such a detachment. Those limits originate in the umbilical cord   that exists between the substance and the procedure which is supposed to give effect to that substance. In the context of the litigation relating to access to documents, the potential for material satisfaction of the application and thus potential loss of the object of the dispute must be assessed in the light of what the applicant was entitled to in the first place.

71.      Seen in that light, I am of the view that the approach embraced by the General Court   by reference to a previous decision in Jurašinović,  which I shall therefore refer to simply as ‘the Jurašinović  test’, is wrong, in both conceptual and practical terms. Before illustrating why that is indeed the case on the facts of the present appeal, I shall first explain that decision in its proper context: how such an approach emerged (i); why it sits rather uneasily with other decisions of the General Court, revealing a lack of coherence in the case-law (ii); and above all, why it cannot be maintained after the decision of the Grand Chamber of the Court of Justice in ClientEarth (iii). 

(i)    From Weber to Jurašinović: the genesis of the test

72.      Weber v Commission  (‘Weber’) (30) appears to be the first case  where the General Court held, by means of an order, that there was no longer  a need to adjudicate when the document requested had been made available (online) to the public by a third person.  

73.      In that case, a journalist asked the Commission to grant him access to a letter from Directorate-General for Competition to the German Government regarding a German State aid.  In answer to a question posed by the General Court to the parties, the Commission confirmed that that letter was fully accessible in a magazine available on the internet. In paragraph 41 of the order, it is stated that: ‘according to the Commission, the applicant has access to the letter that he wishes to consult and can use it in a way which is as lawful as if he had obtained it as a result of his application under Regulation No 1049/2001.’ However, since the action for annulment was held manifestly inadmissible on another ground, that statement was made just in passing  on top of the General Court’s reasoning, while not really being applied in that case.

74.      Next, in Jurašinović,  the applicant had been refused access to Council documents relating to the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) in connection to a trial pending there. As a defence, the Council argued that the applicant had no legal interest in bringing proceedings in so far as, at the date when the action was commenced, some of the requested documents had been published by the ICTY on its court records database, available on the internet.

75.      Against that background, the General Court explicitly relied on Weber in order to state that ‘an action for the annulment of a decision refusing access to documents has no purpose when the documents in question have been made accessible by a third party and the applicant can access them and use them in a way which is as lawful as if he had obtained them as a result of his application under Regulation No 1049/2001’. (31) However, since the General Court noted that the documents at issue were not available on the ICTY website ‘at the date when the action was commenced’,  it  ultimately dismissed the Council’s plea of inadmissibility because the file did not show that the documents in question were accessible to the public on that date. (32)

76.      Thus, in reviewing the cases cited by the General Court as precedents for its key legal proposition in the order under appeal, (33) it would appear that the test set out in the present case has in fact never been previously applied. That, in itself, is indeed not decisive. The organic life of EU case-law means that a passim dictum in one case suddenly becomes the ratio in another. The fact that the test was never actually applied is mentioned solely to emphasise that its impact and consequences necessarily remain somewhat unexplored. 
(ii) The variations in the General Court’s case-law

77.      In addition, there are also other significant strands in the case-law of the General Court concerning the same issue: whether and to what extent does the object (purpose) of an annulment action concerning access to documents disappear following the disclosure of the requested document by a third party.

78.      Before  the decisions in Weber and Jurašinović, in 1995, at a time when access to documents held  by EU institutions was governed by rules specific to each institution, Svenska Journalistförbundet  was unsuccessful in requesting access from the Council to certain documents regarding the European Police Office  (Europol). In any event, the same applicant had already received the documents in question from the Swedish authorities. Against that background, the General Court nevertheless held that ‘a person who is refused access to a document or to part of a document has, by virtue of that very fact, established an interest in the annulment of the decision … The fact that the requested documents were already in the public domain is irrelevant in this connection’. (34) The General Court then went on to examine the case on the merits, eventually annulling the  Council’s decision to refuse  the applicant access to the requested documents.

79.      Perhaps even more importantly,  after the decisions in Weber and Jurašinović, in Access Info Europe v Council, (35) the applicant challenged the Council’s refusal to grant the applicant access to certain information, contained in a note, concerning the proposal for a new regulation regarding access to EU institution documents, on the ground that it would undermine its decision-making process. In its defence, the Council stated that a full version of the requested document was already available, before the date on which the action was introduced, on the website of the organisation Statewatch. According to the Council, that publication was not authorised. The Council did not know about it when it decided on the application for access. In its reply, the applicant acknowledged that it was now in possession of a copy of the full version of the document, while also acknowledging that it had not been aware of that copy at the time when it lodged its application for access.

80.      The General Court held that the disclosure of the version of the requested document on the internet, like the subsequent awareness of the content of that version by the applicant, did not support the conclusion that the latter no longer had an interest in applying to have the contested decision annulled. (36) The behavior of Statewatch was held to be irrelevant for the purposes of assessing the applicant’s interest in having such a decision annulled. As a result, although the applicant had been able to obtain the content of the information to which access was refused by the Council, it still had an interest in having the refusal decision annulled. (37)

81.      In contrast to the General Court, (38) I have some difficulty in distinguishing the approach embraced by the General Court in those cases from the present one. The solution embraced by the General Court in those cases remains strikingly different as to its logic and approach: third-party disclosure of the requested document (be it ‘legal’ as in Svenska Journalistförbundet, or in fact ‘not authorised’ as in Access Info Europe) was considered to have no impact on material satisfaction and thus on the interest of an applicant in bringing an action for annulment of a refusal decision. 
(iii) ClientEarth

82.      Finally and perhaps most importantly, the Grand Chamber of this Court did have the opportunity recently to deal with the issue of the impact of material satisfaction in an access to documents annulment action on the interest of the applicant in ClientEarth. (39)

83.      ClientEarth is a non-profit environmental protection organisation. It asked the Commission to grant it access to certain impact assessment reports. The Commission initially refused on the grounds of the protection of the decision-making process. However, it then gradually released all the documents requested by ClientEarth in the course of the proceedings before the Court. (40)

84.      In response to the Commission’s application that there was thus no need to adjudicate, the Court replied that ‘despite the publication or disclosure to [the applicant] … of the various documents [requested]’ in the course of the proceedings, ‘the decisions at issue have not been withdrawn by the Commission, so that the dispute has retained its purpose’. (41)

85.      I agree with the appellant that ClientEarth is, in this respect, relevant for the present case. Although seen on its facts, ClientEarth is primarily instructive with regard to the issue of any further or residual interest to act in cases where the applicant received full satisfaction, and thus will be primarily relevant for the examination of the applicant’s second ground of appeal, its impact on the first ground cannot be overlooked either. 

86.      In ClientEarth, if seen through the lenses of a subsequent clarification in Rogesa, (42) the Court has confirmed that for the object of the action to fall away, there must be either formal satisfaction of the applicant (the contested decision must have been withdrawn by the institution), or full and complete material satisfaction provided by the institution itself. I wish to stress that in both of these cases, full material satisfaction meant (for the Court) only a situation in which the applicant (i) received all the requested documents in their entirely and (ii) from the institution at issue. 

87.      By contrast, that approach cannot apply to (i) an applicant who has been made aware that an edited version of presumably the requested document exists, (ii) not by the institution from which it had requested the document, but by a court, (iii) that version having been posted online by a third private party without the knowledge of the applicant or the institution. 

88.      Admitting such a loss of interest would be entirely at odds with the logic and the spirit of Regulation No 1049/2001. Moreover, even at the stage of potential judicial enforcement of any such rights before the EU Courts, (43) the prima facie seductive logic of bringing a case to a speedy conclusion would be, as far as it could ever play a role, (44) badly served. Beyond its clear incompatibility as to the spirit of the regulation, the Jurašinović test   actually poses more practical problems than it could ever potentially deliver in (easy) solutions, an issue to which I now turn.
3.      The problems of Jurašinović  (as demonstrated by the present case)

89.      In   Jurašinović, the General Court set out  three criteria or conditions that must be fulfilled to conclude that an annulment action against an EU institution’s refusal has become devoid of purpose. They appear to be cumulative: (i)  the document must have been made accessible by a third party so that the document was already in the public domain at the time of the introduction of the annulment action or, at least, at the time of adjudication; (ii) the applicant can access it; (iii) the use of that document is lawful.  

90.      The practical problems with   that test are at least threefold: knowledge, authenticity and lawful use. 

91.      First, there is the issue of knowledge and the availability of the document. The appellant has argued that her right to information under Regulation No 1049/2001 cannot be made dependent on her ability to use Google or on her awareness of the fact that a third party had placed the requested document in cyberspace. Forcing citizens to search cyberspace would run counter to the purpose of Regulation No 1049/2001 of ensuring the easiest possible exercise of the right of access to documents. For its part, the respondent stated that it is likely that the appellant knew about that publication because some of her contributions are actually posted on that blog. 

92.      On this point, I agree entirely with the applicant. Regulation No 1049/2001 has set up an institutional route to obtain certain documents. Would every applicant who now wishes to request a document first have to do a thorough search on the internet for that document? Moreover, if he or she subsequently ever wished to sue for annulment of a negative decision, would that person then have to periodically search at regular intervals, while the action is pending, to be sure that the requested document does not pop up somewhere on the internet in the years to come? 

93.      The present case highlights another odd element of the first condition in  Jurašinović: interest will not only be lost if, already at the moment of launching the action, the applicant was apparently materially satisfied, but also at any time after that, ‘at least at the time of adjudication’. This contradicts not only the previous statements of the General Court itself, (45) but also  the subsequent decision in ClientEarth, which maintained, for a very good reason, that what happens after the introduction of the action for annulment of a refusal decision may be relevant only to a limited degree. 

94.      Moreover, the present case carries that logic beyond the absurd: would such a loss of interest be activated, not only because documents were made available somewhere on the internet by a third party, but also on account of those documents themselves of which neither the applicant, nor the defendant institution, had any knowledge? They did not know  about that publication, as they both stated before the General Court, from the moment when the Parliament adopted its confirmatory decision right up until the time when this fact was brought to their attention by the General Court itself. Thus indeed, in reply to the introductory question raised in this Opinion, borrowed from Dune, effectively ‘disclosing (a requested document) without (ever) giving (access to it)’, or even ‘disclosing without knowing’,  would then in essence  become possible in the view of the General Court. 

95.      Second, as regards the issue of authenticity and integrity of the requested document: the appellant and the Swedish Government claim that the appellant must obtain information from authentic sources, especially in view of her professional activity, namely academic research. The appellant stressed that she is an academic researcher funded by the Academy of Finland. Bound by the standards of quality, objectivity and research ethics, she cannot rely on searching the internet for leaked or redacted information, but is obliged to use information only from authentic sources. She pointed out in this context that Mr De Capitani indicated in his blogpost that what he posted is: ‘a version emphasised/notated by me’.

96.      For its part, the General Court noted that the parties have agreed that Mr De Capitani ‘made a full version of that document available to the public on the internet’ and that ‘the Court set out at length the content of the requested document’ (46) in the judgment in De Capitani. (47)

97.      I shall not comment on the factual statement made by the General Court in that context. The appellant did not plead any distortion of evidence. It is thus not my task to assess what is in fact a ‘full version’ of the requested document, which, at least at the time when this Advocate General looked at it, was an open html blogspot entry, redacted and with annotations made by the author. (48)

98.      It is apparent from the appellant’s statements before this Court and before the General Court,  that she was not ‘satisfied’ by the ‘disclosed’ document, since the version posted online by Mr De Capitani was not authentic and could not be relied upon for her purposes. 

99.      Again, I cannot but agree with that latter submission. To my mind, the purpose for which an applicant wishes to obtain a document is, under Regulation No 1049/2001, not relevant. (49) Any applicant, whether a journalist, an academic researcher, or just a nosy citizen, has a clear right under the regulation to obtain an answer from the institution. As already outlined above, (50) insisting on the answer from the institution, in case of a positive decision under either Article 10(1) or (2), in itself ensures the authenticity and reliability of the information provided. That right belongs to any applicant under the regulation, irrespective of his or her purpose in seeking the information. 

100. Again, the practical consequences to which the statement of the General Court in paragraph 26 of the order under appeal would lead is,  in essence, ‘make your own version of an official decision based on information taken from a private redacted blogspot and the decision of the General Court  in another case’, both of which were issued or ‘discovered’  a long time after the original decision that is still under review took place. 

101. Third, to both previous points connects the issue of lawful use, forming the third condition in Jurašinović. Paragraph 28 of the order under appeal states that ‘a full version of the requested document was made accessible by the addressee of the document himself, with the effect that there is no doubt that the applicant can use it an entirely legal manner for the purposes of her university work’.

102. I am again somewhat puzzled by this proposition. How can a person, seeking access to a document,  who was informed by the institution that the document cannot be disclosed, then be sure, after being told that there is a version of that document somewhere on a private blogspot, that the use of such a document found online is ‘as lawful as if it had been obtained on the basis of Regulation No 1049/2001’?  The applicant has been told that she cannot obtain that very same document. Should the applicant not presume rather logically, because of such an express  refusal, that the document at  issue ended up on the internet without authorisation? Should that not indeed be the necessary deduction when, even after the learning of that online disclosure by a third party, the  Parliament has never withdrawn its original negative decision and maintained it up to this very day?

103. On the facts of the present case, the reasonable assumption about the ‘lawful use’ to be made by the appellant would rather be exactly the opposite of that stated by the General Court. Moreover, in general terms, it should certainly not be expected of a person that followed the correct institutional route to obtain access to a certain document under Regulation No 1049/2001 to conduct a thorough legal assessment — or to bring his or her  case before the EU Courts so that the latter carry out that assessment — in order to determine whether he or she can lawfully use a version of the requested document found online. Again, under the system established by Regulation 1049/2001, that person is entitled to obtain an unambiguous and direct answer from the EU institution, which at the same time also guarantees the integrity, the authenticity and the lawfulness of the use of the documents that have made been available to the public by a third party. 

104. The clarity as to the lawful use is even more important in a world where, sooner or later, all sorts  of information circulate on the internet. (51) To assess the lawfulness of the use of some of that  information may be complex, starting with the issue of genuine authorship and the authenticity of the document. That is why the system established by Regulation No 1049/2001 is crucial for authoritatively establishing the lawful use by the institution itself, so that such issues do not in fact arise in any successive cases or litigation. (52)
4.      Back to the roots: the conditions for material satisfaction of an applicant in an access to documents case

105. This Opinion took the time and space to discuss, in quite some detail, the Jurašinović test advanced by the General Court in the order under appeal. The aim was to explain why, in my view, that   approach is conceptually mistaken and, on a practical level, absurd. 

106. As the previous section also demonstrated,   the energy that will be spent by the EU Courts, seised in the future by any actions for annulment of negative decisions issued under Regulation No 1049/2001, would have very little to do with the substance of a case on merits. It would degenerate into endless (factual) discussions about who posted what exactly, where it was posted and when, who knew about it, and whether a document posted by a third party somewhere does or does not have the same number of paragraphs as the original, and so on. 

107. Moreover,   such factual discussions would then indeed be used effectively to deprive an individual of access to the EU Courts. It must be borne in mind that an order stating that there is no need to adjudicate is rather a strong measure in which, against the will of an applicant, the EU Courts come to the conclusion that the applicant’s action is in essence spurious and devoid of any real content. It must therefore be applied carefully, if not to say delicately, particularly in situations where the formal object of a dispute is already replaced by the EU Courts with a material one, like in the cases on access to documents. (53)If, at the next stage, the content of the material satisfaction starts being redefined beyond recognition with regard to what was originally asked of a court, (54)the danger of a deprivation of any real access to a court becomes dangerously close. 

108. For all th  ose reasons, I would suggest that the Court uphold the first ground of appeal and return to the rational simplicity of the current test of material satisfaction as recently confirmed by this Court in ClientEarth and Rogesa, which can be summarised as follows. 

109. An applicant seeking the annulment of a decision issued by an institution pursuant to Regulation   No 1049/2001 can lose his or her initial interest in bringing an action if, and only if, he or she is either formally or materially fully satisfied. Formal satisfaction means that the institution withdraws the contested decision. Material satisfaction may also appear in the absence of formal withdrawal, but only if the applicant receives (i) in full all the requested document(s) in the form and to the extent requested and, (ii) from the institution in question, under either of the modalities foreseen in Article 10(1) or even (2) of Regulation No 1049/2001. 

110. Such full satisfaction may lead to the loss of the   initial interest in bringing or pursuing an action before the EU Courts. Provided that there is no further or other interest on the part of the applicant in pursuing the case (an issue addressed in the following section under the second ground of appeal), the complete loss of interest in the case might exceptionally be pronounced, with the consequence of there being no need to adjudicate on the matter. (55)

111. On the facts of this case, it is clear that neither formal nor material satisfaction of the   appellant occurred. The appellant clearly retains her initial interest in seeing these proceedings brought to a decision on merits. The General Court thus erred in law. The order under appeal should be set aside. 
C.      The second ground of appeal

112. In my view, the appellant should be successful on her first ground of appeal. If the Court were to agree with my analysis on that account, there would be no need to examine the second ground of appeal. However, in view of the task of Advocates General to fully assist the Court, I shall also make a few brief closing remarks on the second ground of appeal. 

113. Those remarks can be indeed relatively concise, since following ClientEarth, the appellant would certainly be correct on the second ground of appeal as well. Applying the  findings in that case to the facts of the present case, one cannot but conclude that, in addition to never losing her initial interest in these proceedings, the appellant would also have further interest in obtaining a judgment from the General Court, at the very least under the heading of preventing the unlawfulness from occurring again with regard to any potential application for access she might make in the future. 

114. In  paragraph 33 of the order under appeal, the General Court held that the Parliament’s refusal to grant access was specific to the case and of an ad hoc nature. The alleged unlawfulness was not liable to recur in the future outside the specific circumstances of the present case. In particular, ‘the Parliament’s refusal set out in the contested decision was based on the exception relating to the ground of the protection of court proceedings … for so long as such proceedings are pending, as the Parliament observed that the requested document had a relevant link with the ongoing judicial proceedings in the case that gave rise to the judgment [in De Capitani]  and that the context of the request for access was characterised by intense debates in blogs and views that were likely to influence its own position in the case’.
1.      Parties’ submissions

115. The appellant, together with the Finnish and Swedish Governments, share the view that the appellant has retained an interest in bringing proceedings since the unlawfulness at issue is likely to recur in the future, irrespective of the particular circumstances of the case. According to the appellant, the respondent’s refusal to grant access to the requested document was neither specific to the case nor of an ad hoc nature. As in ClientEarth,  the appellant is more than likely to make further requests for access to similar documents as the one at issue in the future, since her current research on that topic will continue at least until 2021.  

116. The appellant further maintains that a document challenged before the Court of Justice  of the European Union is inherently part of court proceedings. The existence of intense debates in blogs cannot be a reason for withholding documents. Through the order under appeal, the General Court would in fact have  created a category of documents, namely final refusal decisions subject to judicial challenge, that would not be subject to disclosure, and to which a (de facto) general presumption of non-disclosure would apply. 

117. For its part, the Finnish Government is of the view that there is indeed a considerable risk that the respondent will refuse to disclose the decisions it makes on the ground of the protection of court proceedings in the future.

118. According to the respondent, the appellant confuses the issue of the continued interest in bringing proceedings with the lawfulness of the contested decision. The General Court was correct in considering that the question whether the refusal decision was specific to the case and of an ad hoc nature was a relevant element. The refusal of access was specific to the circumstances of the case. It was based on an assessment of the relevant document within the specific context of court proceedings,  which gave rise to a significant interest from the press and general public. Thus, the respondent claims that the General Court was correct in not characterising the respondent’s refusal decision as a de facto general presumption of non-disclosure. The circumstances of the present case are different from those in ClientEarth  so that the latter does not apply.
2.      ClientEarth Reloaded

119. I agree with the parties that the decision of this Court in ClientEarth is indeed decisive for the present case. However, since both parties appear to be drawing somewhat different conclusions from that decision, it appears necessary to set out its findings in detail. 

120. It might be recalled that in that case, (56) since the Commission, at the time of adjudication by this Court, had already fully (materially) satisfied the request made by the appellant, it was indeed the further or additional interest in pursuing the case that became decisive. Owing to that residual or further interest, the Court singled out three factors as being of relevance. 

121. First, the Court noted that the belated disclosure of the documents, which took place after the decision-making process was over, did not enable the objectives pursued by ClientEarth, through its request for access, to be achieved, namely to influence the decision-making process (‘the frustration of the purpose of disclosure’). (57)

122. Second, the Court considered that the Commission based its initial decision on the general presumption that the disclosure of documents drawn up in the context of the preparation of an impact assessment would seriously undermine the ongoing decision-making process. That general presumption was  likely to be implemented again in the future by the Commission in response to new requests for access to documents drawn up in the context of preparing an ongoing impact assessment. The Court thus concluded that the unlawfulness was likely to recur in the future (‘the danger of recurrence’). (58)

123. Third, the Court noted that ClientEarth was particularly vulnerable to such implementations of that presumption in the future. As an organisation seeking the protection of the environment, one of its tasks was to promote increased transparency and lawfulness in relation to the EU legislative process. It was therefore likely that it would again request access to documents in the future and that the Commission would once more refuse to grant such access on the basis of that general presumption. As a consequence, ClientEarth would have to bring a new action for annulment in order to challenge the merits of that presumption (‘special position of vulnerability’). (59)
3.      The danger of recurrence

124. In contrast to the appellant, I am not entirely sure of the extent to which the three points set out above constitute in fact a ‘test’, and the extent to which they are just three different circumstantial elements that the Court considered to be relevant in that particular case so as to bring ClientEarth over the finishing line in terms of residual interest to act. 

125. I am, however, in full agreement with the appellant that if the approach set out in ClientEarth,  concerning the likelihood of the danger of recurrence of the alleged illegality committed by the institution,  were to be applied in the present case, that condition would be satisfied. 

126. To my mind, the logic underlying the second category of ClientEarth might be kept relatively simple: was the refusal to grant access in that case, (i) based on a general legal proposition that is likely to be applied by the respondent in future cases, (ii)  with regard to the same appellant? 

127. The logic of the accordingly defined exception is rather clear: neither the individual (subjective interest), nor in fact the EU Courts (objective interest), wish to deal repetitively with the same type of cases in which, because of the behaviour of the respondent institution, the merits will never be addressed. Thus, in the interest of the law and indeed sound administration of justice, the override button might occasionally be pushed and a case brought to a close on merits even if, strictly speaking, the original object of that dispute disappeared.

128. However, as to its overall approach, ClientEarth is in fact rather generous to the applicants. 

129. First, the likelihood of recurrence is clearly detached from the particular circumstances of the case, thus clearly ‘irrespective of the particular circumstances’. (60) That is indeed rather logical: the aim is that the same (questionable) legal premiss would not be applied in other, similar cases. If that were not the case, then one would arrive at a very problematic (and empty) reading of that condition, always stating that each case is different and thus each decision is ad hoc and non-transferable. But, that is clearly not what is aimed at here: it is precisely the potential transferability across individual cases that must be caught. 

130. Second, what is therefore to be established is the formulation of a general legal proposition at a reasonable level of abstraction, which could be applied in future cases. If such a premiss could be formulated based on the case at hand, then of course the potential applicant is not obliged to bring forth any evidence that that will be the case. (61) Reasonable likelihood is sufficient. (62)

131. Third, however, it is also clear that that likelihood of recurrence must relate to the same applicant. Whether he or she is a ‘particularly vulnerable’  person might be of some weight in that regard, but it would appear the ruling in  ClientEarth  is not going as far as to introduce the possibility for an individual to sue in the general interest, by  simply suggesting that the same type of illegality might be committed by the institution with regard other, future applicants. The interest to act remains with the specific applicant who had, in the first place,  an individual interest to challenge the EU negative decision at issue until an event over which that applicant had no control occurred, namely the fact that the author of the contested act changed its mind to the benefit of the applicant in a specific case. (63)

132. Turning to the present case, I am indeed bound to agree with the appellant that those elements of the Court’s judgment in ClientEarth are fully applicable in the present appeal. 

133. First, was the refusal based on a broad legal proposition concerning the application of Regulation No 1049/2001  which could be applied again? Indeed it was. For all practical purposes, that presumption, or rather legal rule or proposition, (64) appears to suggest that the disclosure of EU decisions challenged before the EU Courts would seriously undermine the protection of court proceedings for the purposes of Article 4(1)(b) of Regulation No 1049/2001, in particular when those decisions give rise to intense debates. (65)

134. Can such a legal proposition be applied in future cases? Of course it can, very easily, and with a rather heavy impact on access to documents in any similar cases: any final administrative judicial decision that just happens to be subject to judicial review before the EU Courts could actually be excluded from the possibility of access under Regulation No 1049/2001 for the rather extended periods of time it takes to complete judicial review before the EU Courts. (66)

135. Second, without wishing to enter into the intriguing debate on whether academics receiving research grants constitute a particularly vulnerable group (within the meaning of ClientEarth), it has been suggested that the appellant herself is likely to file further requests for access to documents held by the EU institutions in the future.  She is engaged in research on that very topic, with her current research financed by a grant continuing until at least 2021. Thus, in line with the Court in ClientEarth,  there is a reasonable likelihood that further requests will be made by the same appellant, or rather, on all the facts brought before this Court, such likelihood of future requests certainly cannot be excluded.

136. In sum, in the event that the Court also wished to examine the second ground of appeal advanced by the appellant, it is my view that that ground is also well founded.
D.      Scope of the present case

137. The appellant has requested  this Court to set aside the order under appeal. In addition, she also requested the Court to make use of  the second sentence of Article 61 of the Statute of the Court of Justice of the European Union. That provision empowers the Court to give final judgment in the matter, where the state of the proceedings so permits, without referring the case back to the General Court for judgment.

138. In the present case, since the General Court has neither examined the admissibility nor the substance of the dispute brought before it, I suggest that the Court of Justice should set aside the order under review and refer the case back to the General Court under the first sentence of Article 61 of the Statute of the Court of Justice of the European Union. Indeed, in view of the rather singular course of the proceedings in the present case, the necessary discussion that ought to have taken place on these matters was cut short by the General Court’s re-focalisation of the dispute in the form of its measure of organisation of procedure issued pursuant to Article 89 of its Rules of Procedure.
V.      Conclusion

139. I propose that the Court should:
–        set aside the order of the General Court of the European Union of 20 September 2018,  Leino-Sandberg v Parliament (T‑421/17, not published, EU:T:2018:628);
–        refer the case back to the General Court;
–        reserve the costs.

1      Original language: English.

2      First edition published by Chilton, Philadelphia, in 1965.

3      It would nonetheless appear that for others, ‘Travelling Without Moving’ is more likely to be associated with the title of the third studio album by British funk and acid jazz band Jamiroquai released in 1996.

4      Regulation of the European Parliament and of the Council of 30 May 2001 (OJ 2001 L 145, p. 43).

5      That case later gave rise to the judgment of 22 March 2018, De Capitani v Parliament (T‑540/15, EU:T:2018:167).

6      Order of 20 September 2018, Leino-Sandberg v Parliament (T‑421/17, not published, EU:T:2018:628).

7      On the website  www.free-group.eu/2015/07/12/eus-laws-are-like-sausages-you-should-never-watch-them-being-made/ (reproduced in the case file of the General Court, in the version  last accessed on 21 May 2020).

8      Footnote 7 of this Opinion, with the hyperlink indicated by the General Court reproduced there.

9      Judgment of 22 March 2018, De Capitani v Parliament (T‑540/15, EU:T:2018:167).

10      Order of 20 September 2018, Leino-Sandberg v Parliament (T‑421/17, not published, EU:T:2018:628).

11      Paragraph 27 of the order under appeal.

12      Paragraph 28 of the order under appeal.

13      Paragraph 33 of the order under appeal.

14      Paragraph 35 of the order under appeal.

15      See, for example, judgments of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322, paragraph 42); of 17 April 2008, Flaherty and Others v Commission (C‑373/06 P, C‑379/06 P and C‑382/06 P, EU:C:2008:230, paragraph 25); of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 61); of 9 November 2017, HX v Council (C‑423/16 P, EU:C:2017:848, paragraph 30); of 23 November 2017, Bionorica and Diapharm v Commission (C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraphs 84 and 85); and of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 43).

16      See, for example, judgments of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322, paragraph 50); of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 63); and of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 48).

17      See, for example, judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 43 to 52).

18      I use the term ‘object’ of the action advisedly, in preference to that employed in the English translations of some of the Court’s judgments on this matter, which refer to the ‘purpose’ of the action.

19      See, for example, judgments of 5 March 1980, Könecke Fleischwarenfabrik v Commission (76/79, EU:C:1980:68, paragraph 9), and of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 64).

20      See, for example, judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 65).

21      See, for example, judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 63), in the context of restrictive measures and the applicant retaining interest although his name has been removed from a list imposing such measures, or judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraphs 49 to 54).

22      Judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660).

23      Article 2(2) of the draft regulation, with no definition given of what ‘other means’ means. (COM (2000) 30 — 2000/0032(COD)).

24      Report of 27 October 2000 of the European Parliament on the proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Enhanced Hughes Procedure) – Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs COM(2000) 30 – 2000/0032(COD), PE 285.961. See, in particular, pp. 19, 20 and 72. My emphasis.

25      Thus, for example, a reply from the Commission to an applicant indicating that the requested documents is in fact available at a (clearly given) website of the Council would satisfy the spirit of Article 10(2), even if perhaps not, strictly speaking, its letter.

26      A potential (coordinated) disclosure of a requested document by a Member State under Article 5 of the regulation being a different matter.

27      Which then would also open up a number of intriguing questions, including how far the Parliament’s endorsement by reference to the blogspot in question went, since that blog includes also a number of rather unflattering remarks and statements by its author concerning the ‘legal analysis’ carried out by the Parliament, inserted into the reproduced parts of the requested document.

28      Judgment of 3 October 2012, Jurašinović v Council (T‑63/10, EU:T:2012:516).

29      See above, point 53 of this Opinion.

30      Order of 11 December 2006, Weber v Commission (T‑290/05, not published, EU:T:2006:381).

31      Judgment of 3 October 2012, Jurašinović v Council (T‑63/10, EU:T:2012:516, paragraph 24).

32      Ibid., paragraph 26.

33      In the last decision cited in paragraph 27 of the order under appeal, judgment of 15 October 2013, European Dynamics Belgium and Others v EMA (T‑638/11, not published, EU:T:2013:530), the passim invocation of Jurašinović  was  not relevant.

34      Judgment of 17 June 1998, Svenska Journalistförbundet v Council (T‑174/95, EU:T:1998:127, paragraphs 67 and 69). My emphasis.

35      Judgment of 22 March 2011, Access Info Europe v Council (T‑233/09, EU:T:2011:105), confirmed on appeal by the judgment of 17 October 2013, Council v Access Info Europe (C‑280/11 P, EU:C:2013:671).

36      Ibid., paragraph 34.

37      Ibid., paragraphs 36 and 37.

38      Paragraphs 29 and 30 of the order under appeal. The only attempt at distinguishing Svenska Journalistförbundet (while being silent on  this aspect of Access Info Europe), is to suggest that, in contrast to Svenska Journalistförbundet, there is no doubt about the lawfulness of the disclosure at issue in the present case. Nonetheless, that premiss is not only somewhat contestable, but is also off the point, as will be outlined in the following section of this Opinion.

39      Judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660).

40      Ibid., paragraph 38.

41      Paragraph 45, where the Court relied on the judgment of 7 June 2007, Wunenburger v Commission  (C‑362/05 P, EU:C:2007:322, paragraphs 48 and 49).

42      In the order of 17 December 2019, Rogesa v Commission (C‑568/18 P, not published, EU:C:2019:1092), the Court decided that there was no need to adjudicate in a case where the Commission eventually disclosed the requested documents, albeit without withdrawing its initial negative decision. However, as made clear by the Court in paragraph 26, the applicant did not contest the fact that the disclosure entirely satisfied the aims pursued by that applicant in its request for access, receiving everything it requested from the Commission.

43      Provided of course that there would still be something to enforce, because today, sooner or later, something will always appear somewhere on the internet …

44      Quid non. However, there is always the temptation.

45      See above, points 77 to 81 of this Opinion.

46      Paragraph 26 of the order under appeal.

47      Judgment of 22 March 2018, De Capitani v Parliament (T‑540/15, EU:T:2018:167).

48      As outlined above in point 13 of this Opinon.

49      See Article 6(1), last sentence, of the regulation (quoted above in point 9 of this Opinion).

50      See above, points 58 to 64 of this Opinion.

51      See, recently, judgment of 18 July 2017, Commission v Breyer (C‑213/15 P, EU:C:2017:563, paragraph 62), or order of 14 May 2019, Hungary v Parliament (C‑650/18, not published, EU:C:2019:438, paragraph 14). See also order of 29 January 2009, Donnici v Parliament (C‑9/08, not published, EU:C:2009:40, paragraph 18).

52      In the order of 14 May 2019, Hungary v Parliament (C‑650/18, not published, EU:C:2019:438), Hungary included as an annex to its application before the Court a legal opinion that was issued by the legal service of the Parliament. However, without its disclosure ever being requested by Hungary or any other party, that legal opinion was made available to the Politico website. The Court held that authorising that Member State to place on file a legal opinion of the Parliament, the disclosure of which has not been allowed by the latter, would amount to circumventing the procedure of application for access to such a document provided for by Regulation No 1049/2001.

53      Especially, if applied in a context where there are no clear rules as to the proper behaviour of the institution in such circumstances. May an institution materially satisfy an applicant without ever formally revisiting its previous decision? Can its actions thus in fact contradict its own valid decision? If there is a need to revisit it, is it ex officio or only following a new request made by the applicant, typically when the previous impediment to disclosure had been removed? Enhanced flexibility for the EU institutions which follows from the fact that there is no European Code of Administrative Procedure, where such issues should normally be regulated, cannot be used and held  effectively against individual applicants seeking access to judicial review. Exactly the opposite ought to be the case: the fact that there are no rules should, if anything, be interpreted against the institution(s), certainly as far as the individual access to the EU Courts is concerned.

54      Without wanting to be too formalistic, the original object of the action is and still remains the annulment of the contested decision of the Parliament. Imagine, by analogy, a situation in which I buy tickets for a concert which are never delivered by the organisers (for whatever reason). When I sue the organisers in a civil court to send me those tickets, or to return the money, the court asks me whether I would be satisfied with watching (some parts of) the concert recorded on a shaky mobile by someone in the crowd which was then posted online. Since that video was apparently uploaded in compliance with copyright rules, the civil court declares that there is no need to adjudicate on my action, because I can watch that online video.

55      For cases in which any such loss of the initial interest came only after the lodging of the application, and where there are no specific factors, the entirety of costs is then to be borne by the EU institution — see, to that effect, judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 130), and order of 17 December 2019, Rogesa v Commission (C‑568/18 P, not published, EU:C:2019:1092, paragraph 37).

56      See above, points 82 to 85 of this Opinion.

57      Judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraphs 46 and 47).

58      Ibid., paragraphs 49 to 53.

59      Ibid., paragraph 54.

60      See, for example, apart from judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraphs 48 and 50), judgments of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322, paragraph 52), and of 30 April 2020, Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission (C‑560/18 P, EU:C:2020:330, paragraph 40).

61      Which of course does not preclude there being some applicants who are wizards and who are indeed able to produce evidence about the future.

62      In fact, in paragraph 53 of ClientEarth, the Court goes as far as to shift effectively that burden on the respondent institution, stating that ‘the general presumption … is likely to be implemented again in the future by the Commission in response to new requests … a likelihood which, moreover, has not been disputed by that institution’. My emphasis.

63      See, to that effect, judgment of 30 April 2020, Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission (C‑560/18 P, EU:C:2020:330, paragraphs 49 and 50), which reasserted ClientEarth, albeit distinguishing the two cases on their facts so as to reach a different outcome. See also Opinion of Advocate General Pitruzzella in  Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission (C‑560/18 P, EU:C:2019:1052, point 88).

64      To my mind, what ClientEarth aimed at was indeed not a legal presumption (in the sense of presumptio iuris and all the legal implications of such a construct), but rather a legal proposition or a legal rule.

65      With the accordingly formulated legal proposition bearing striking resemblance to the proposition referred to by the Court in ClientEarth  in  paragraph 49 of that decision.

66      Without even needing to enter into a discussion on what it might mean for the context of the request to be ‘characterised by intense debates in blogs’ (paragraph 33 of the order under appeal), and instead simply noting the fascinating paradox in that proposition: if something is of interest and therefore likely to stir debate, should access to it therefore be refused? Is the often mentioned openness, transparency, and more accountability of EU institutions (recital 2 of Regulation No 1049/2001) to be sought after only with regard to decisions which are safely of zero interest to everyone?