ClientEarth v European Commission.
Date: 2018-09-04
43


In that regard, it should be borne in mind that, according to the settled case-law of the Court, the purpose of the action must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action or, as the case may be, the appeal must be liable, if successful, to procure an advantage for the party bringing it (see, to that effect, judgments of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 61 and the case-law cited, and of 27 June 2013, Xeda International and Pace International v Commission, C‑149/12 P, not published, EU:C:2013:433, paragraph 31).
45


Furthermore, despite the publication or disclosure to ClientEarth, in the course of the present appeal proceedings, of the various documents referred to in paragraphs 37, 38 and 41 of this judgment, it should be noted, in the first place, that the decisions at issue have not been withdrawn by the Commission, so that the dispute has retained its purpose (see, to that effect, judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 48 and 49).
47


In the light of the considerations set out in paragraph 37 above and the explanations provided by the Commission at the hearing before the Court, it appears that disclosure of the impact assessment report and of the opinion of the Impact Assessment Board concerning access to justice in environmental matters followed the Commission’s decision not to submit a legislative proposal on the matter and to adopt a notice. Concerning the communication to ClientEarth of the impact assessment documents regarding inspections and surveillance in environmental matters, it is apparent from paragraph 38 above that this followed the adoption, by the Commission, of a communication on environmental compliance and governance and of a decision setting up a new group of experts in the field. It therefore seems that disclosure of those various documents did not take place until after the Commission had made a decision regarding the initiatives envisaged. In those circumstances, that disclosure does not appear to have enabled the objectives pursued by ClientEarth in submitting its requests for access to be fully met.
48


In the third place, it follows from the case-law of the Court that an applicant may, in certain cases, retain an interest in seeking annulment of the contested act and, as the case may be, the setting aside of the judgment of the General Court dismissing the action brought against that act in order to induce the author of that act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of the act in question will be repeated (see, to that effect, judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 63 and the case-law cited). The continuation of that interest presupposes that that unlawfulness is liable to recur in the future, irrespective of the particular circumstances of the case in question (see, to that effect, judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 52).
51


In that regard, it should be borne in mind that, according to settled case-law, if an EU institution hearing a request for access to a document decides to refuse to grant that request on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by that exception. Moreover, the risk of the interest being so undermined must be reasonably foreseeable and must not be purely hypothetical (see, to that effect, judgment of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 31 and the case-law cited). In certain cases, the Court acknowledged that it was however open to that institution to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 69 and the case-law cited).
52


The objective of such presumptions is thus the possibility, for the EU institution concerned, to consider that the disclosure of certain categories of documents undermines, in principle, the interest protected by the exception which it is invoking, by relying on such general considerations, without being required to examine specifically and individually each of the documents requested (see, to that effect, judgments of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 73, and of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 47 and the case-law cited).
55


Thus, from ClientEarth’s perspective, the question of the lawfulness of the general presumption at issue in the present case is relevant in view of future requests for access to such documents (see, by analogy, judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 59).
73


It should be borne in mind that, in accordance with recital 1 thereof, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 34).
74


That core EU objective is also reflected in Article 15(1) TFEU, which provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible, that principle of openness also being expressed in Article 10(3) TEU and in Article 298(1) TFEU, and in the enshrining of the right of access to documents in Article 42 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 18 July 2017, Commission v Breyer, C‑213/15 P, EU:C:2017:563, paragraph 52).
75


It can be seen from recital 2 of Regulation No 1049/2001 that openness enables the EU institutions to have greater legitimacy and to be more effective and more accountable to EU citizens in a democratic system. By allowing divergences between various points of view to be openly debated, it also contributes to increasing those citizens’ confidence in those institutions (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 45 and 59).
76


To those ends, Article 1 of Regulation No 1049/2001 provides that the purpose of that regulation is to confer on the public as wide a right of access as possible to documents of the EU institutions (see, to that effect, judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 61 and the case-law cited).
77


It is also apparent from Article 4 of that regulation, which introduces a system of exceptions in that regard, that that right is, nevertheless, subject to certain limits based on reasons of public or private interest (judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 57). Among those exceptions, the first subparagraph of Article 4(3) of Regulation No 1049/2001 provides, inter alia, that access to a document, drawn up by an EU institution for internal use, which relates to a matter where the decision has not been taken by the institution, is to be refused if disclosure of that document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in that disclosure.
78


As such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 63 and the case-law cited).
80


As can be seen from the case-law referred to in that paragraph, however, recognition of a general presumption in respect of a new category of documents presupposes that it has first been shown that it is reasonably foreseeable that disclosure of the type of document falling within that category would be liable actually to undermine the interest protected by the exception in question. Furthermore, as general presumptions constitute an exception to the rule that the EU institution concerned is obliged to carry out a specific and individual examination of every document which is the subject of a request for access and, more generally, to the principle that the public should have the widest possible access to the documents held by the institutions of the European Union, they must be interpreted and applied strictly (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 81).
81


As the law stands, the Court has recognised five categories of documents which enjoy general presumptions of confidentiality: the documents in an administrative file relating to a procedure for reviewing State aid; the submissions lodged in proceedings before the courts of the European Union, for as long as those proceedings remain pending; the documents exchanged between the Commission and notifying parties or third parties in the course of merger control proceedings; the documents relating to an infringement procedure during its pre-litigation stage, including the documents exchanged between the Commission and the Member State concerned during an EU Pilot procedure; and the documents relating to a proceeding under Article 101 TFEU (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 77 and the case-law cited; regarding submissions lodged before the courts of the European Union, see, to that effect, judgment of 18 July 2017, Commission v Breyer, C‑213/15 P, EU:C:2017:563, paragraph 41 and the case-law cited; regarding documents exchanged during an EU Pilot procedure, see judgment of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 51). In each of those cases, the refusal of access in question related to a set of documents which were clearly defined by the fact that they all belonged to a file relating to ongoing administrative or judicial proceedings (judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 78; see, also, judgment of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356).
84


In the first place, it should be borne in mind that recital 6 of Regulation No 1049/2001 indicates that wider access should be granted to documents in cases where the EU institutions are acting in their legislative capacity. The possibility for citizens to scrutinise and be made aware of all the information forming the basis for EU legislative action is a precondition for the effective exercise of their democratic rights as recognised, in particular, in Article 10(3) TEU (see, to that effect, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 46, and of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 33). As is emphasised, in essence, by ClientEarth, the exercise of those rights presupposes not only that those citizens have access to the information at issue so that they may understand the choices made by the EU institutions within the framework of the legislative process, but also that they may have access to that information in good time, at a point that enables them effectively to make their views known regarding those choices.
87


That being said, it should be noted that, pursuant to Article 17(2) TEU, EU legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. The power of initiative accorded to that institution by that provision includes, first, the power to decide whether or not to submit a proposal, except in the situations where that institution is obliged to submit such a proposal. In particular, the Commission’s decision to abandon, following an impact assessment, the legislative initiative envisaged puts a definitive end to the planned legislative action, which may not be resumed unless that institution withdraws that decision. Second, the Commission’s power of initiative includes the power to determine the subject matter, objective and content of a potential proposal, bearing in mind that, under Article 293(1) TFEU, except in the cases referred to in that provision, where, pursuant to the Treaties, the Council acts on a proposal from the Commission, it may amend that proposal only by acting unanimously (see, to that effect, judgment of 14 April 2015, Council v Commission, C‑409/13, EU:C:2015:217, paragraphs 70 and 72).
98


Regulation No 1367/2006 aims, as provided for in Article 1 thereof, to ensure the widest possible systematic availability and dissemination of environmental information (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 64 and the case-law cited). It follows, in essence, from recital 2 of that regulation that the purpose of access to that information is to promote more effective public participation in the decision-making process, thereby increasing, on the part of the competent bodies, the accountability of decision-making and contributing to public awareness and support for the decisions taken (judgment of 23 November 2016, Commission v Stichting Greenpeace Nederland and PAN Europe, C‑673/13 P, EU:C:2016:889, paragraph 80).
99


In that regard, although Article 3 of Regulation No 1367/2006 provides that Regulation No 1049/2001 is to apply to any request for access to environmental information, Article 6 thereof adds more specific rules concerning such requests which in part favour and in part restrict that access (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 65 and the case-law cited).
104


In addition, as is argued, in essence, by ClientEarth, by increasing the legitimacy of the Commission’s decision-making process, transparency ensures the credibility of that institution’s action in the minds of citizens and concerned organisations and thus specifically contributes to ensuring that that institution acts in a fully independent manner and exclusively in the general interest. It is rather a lack of public information and debate which is likely to give rise to doubts as to whether that institution has fulfilled its tasks in a fully independent manner and exclusively in the general interest (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 59).
109


It follows that, although the Commission must be able to enjoy a space for deliberation in order to be able to decide as to the policy choices to be made and the potential proposals to be submitted, the General Court was wrong to consider, in essence, that the protection of the Commission’s power of initiative and the preservation of that institution’s ability to exercise that power in a fully independent manner and exclusively in the general interest required, in principle, that documents drawn up in the context of an impact assessment may, generally, remain confidential until that institution has made such a decision.
122


First, the fact, assuming it to be established, that the documents at issue were requested at an early stage of the decision-making process is not, as such, sufficient to establish such a risk (see, by analogy, judgment of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 60).