European Commission v Patrick Breyer.
Date: 2017-07-18
21


The General Court concluded, in paragraphs 75 to 80 of the judgment under appeal, both from its own case-law (judgments of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraphs 88 to 90; of 12 September 2007, API v Commission, T‑36/04, EU:T:2007:258, paragraph 60; and of 3 October 2012, Jurašinović v Council, T‑63/10, EU:T:2012:516, paragraphs 66 and 67) and from that of the Court of Justice (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 94), that, even though they are a part of the judicial activities of the EU judicature, those submissions are not excluded, by virtue of the fourth subparagraph of Article 15(3) TFEU, from the right of access to documents. In this connection, in paragraph 82 of the judgment under appeal, the General Court found that ‘a distinction should be made between the exclusion under the fourth subparagraph of Article 15(3) TFEU of the judicial activities of the Court of Justice from [the] right of access to documents and written submissions drawn up for proceedings, which, although they are a part of those judicial activities, are nevertheless not covered by the exclusion established by that provision and are instead subject to the right of access to documents’.
36


It should be added that Article 3(b) of Regulation No 1049/2001 expressly provides that the right of access to documents held by the Parliament, the Council and the Commission extends not only to documents drawn up by those institutions themselves but also to documents they have received from third parties, including the other EU institutions as well as the Member States (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 55).
37


The scope of Regulation No 1049/2001 is thus defined by reference to the institutions listed in the regulation, not by reference to particular categories of documents or, as the Court has previously observed (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 56), the author of the document held by one of those institutions.
39


Secondly, the Court has previously held that the legitimate interests of the Member States regarding such documents can be protected on the basis of the exceptions laid down in Regulation No 1049/2001 to the principle of the right of access to documents (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 83).
40


Regulation No 1049/2001 lays down provisions which take care to define the objective limits of public or private interest that are capable of justifying a refusal to disclose documents (judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 57), including in particular the second indent of Article 4(2) of the regulation, according to which the institutions are to refuse access to a document inter alia where disclosure would undermine the protection of court proceedings, unless there is an overriding public interest in disclosure.
41


It should be recalled in this connection that in its judgment of 21 September 2010, Sweden and Others v API and Commission (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541), the Court accepted the existence of a general presumption that disclosure of the written submissions lodged by an institution in court proceedings would undermine the protection of court proceedings within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001, as long as those proceedings remain pending. That general presumption of confidentiality applies also to written submissions lodged by a Member State in such proceedings.
42


However, as the Court has stated, the existence of such a presumption does not exclude the right of the person concerned to demonstrate that a document whose disclosure has been requested is not covered by that presumption (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 103).
45


As to the fact, relied on by the Commission, that neither the Statute of the Court of Justice of the European Union nor the rules of procedure of the EU Courts provide for a right of access by third parties to written submissions filed in court proceedings, while that fact is indeed to be taken into account for the purpose of interpreting the exception laid down in Article 4(2) of Regulation No 1049/2001 (see judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 100), it cannot, on the other hand, have the consequence that the regulation does not apply to applications for access to written submissions that have been drawn up by a Member State for the purpose of court proceedings before the EU judicature and are in the possession of the Commission.
50


It should be recalled here that the Court has explained, following the entry into force of the Treaty of Lisbon, that the introduction of Article 15 TFEU, which replaced Article 255 EC, extended the scope of the principle of transparency in EU law (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 81).
52


That broad interpretation of the principle of access to documents of the EU institutions is, moreover, borne out by Article 15(1) TFEU, which provides that the institutions, bodies, offices and agencies of the EU are to conduct their work as openly as possible, that principle of openness also being expressed in the second paragraph of Article 1 TEU and Article 298 TFEU, and by the enshrining of the right of access to documents in Article 42 of the Charter of Fundamental Rights of the European Union. Having regard to those provisions of primary law laying down the objective of an open European administration, the fourth subparagraph of Article 15(3) TFEU cannot, contrary to the Commission’s submissions, be interpreted as requiring a restrictive reading of the scope of Regulation No 1049/2001 with the consequence that documents drawn up by a Member State, such as the written submissions at issue, do not fall within the scope of that regulation where they are held by the Commission.
53


As to the risk asserted by the Commission that the procedural rules mentioned in paragraph 45 above might be circumvented, it must be recalled that the limitations of access to documents relating to court proceedings, whether provided for under Article 255 EC, which was succeeded by Article 15 TFEU, or under Regulation No 1049/2001, pursue the same objective, namely to ensure that the right of access to documents of the institutions is exercised without undermining the protection of court proceedings, and that protection means in particular that compliance with the principles of equality of arms and the sound administration of justice must be ensured (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 84 and 85).
62


As follows from Article 171(1) of the Rules of Procedure, the appeal is to be served on the other parties to the relevant case before the General Court. The procedural documents thus communicated to the parties to the case before the Court of Justice are not available to the public. Consequently, Mr Breyer’s publication on the internet of the pleadings in the present proceedings, without being authorised to do so, constitutes misuse of the pleadings liable to harm the sound administration of justice, which should be taken into account when sharing the costs incurred in the present proceedings (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 92, 93 and 97 to 99).