Guido Strack v European Commission.
Date: 2014-10-02
25. It must be recalled in that regard that Regulation No 1049/2001 does not allow for the possibility of derogating from the time-limits laid down in Articles 7 and 8 thereof and that those time-limits are determinative as regards the conduct of the procedure for access to the documents held by the institutions concerned, which aims to achieve the swift and straightforward processing of applications for access to documents (see, to that effect, judgment in Internationaler Hilfsfonds  v Commission , C‑362/08 P, EU:C:2010:40, paragraph 53).
27. That finding cannot be undermined by the Commission’s argument relating to the possibility for the institutions to reconcile the interests of an applicant for access to documents in their possession with the interest of good administration. It is true, as stated in paragraph 30 of the judgment in Council v Hautala (C‑353/99 P, EU:C:2001:661), that it flows from the principle of proportionality that the institutions may, in particular cases in which the volume of documents for which access is applied or in which the number of passages to be censured would involve an inappropriate administrative burden, balance the interest of the applicant for access against the workload resulting from the processing of the application for access in order to safeguard the interests of good administration.
29. As far as concerns the complaint relating to the reasoning of the judgment under appeal, it must be observed that the fact that the General Court arrived at a different conclusion on the merits from the Commission cannot in itself vitiate the judgment under appeal for failure to state reasons (judgment in Gogos  v Commission , C‑583/08 P, EU:C:2010:287, paragraph 35).
36. It is clear from the case-law of the Court that the procedure for access to documents held by the institutions is carried out in two stages and that the response to an initial application, within the meaning of Article 7(1) of Regulation No 1049/2001 is only the first position adopted which, in principle, cannot be subject to an appeal (see order in Internationaler Hilfsfonds  v Commission , EU:C:2012:76, paragraphs 30 and 31). However, exceptionally, where an institution adopts a definitive position with such a response, it may be subject to an action for annulment (see judgment in Internationaler Hilfsfonds  v Commission , EU:C:2010:40, paragraph 62).
38. In that connection, as the Advocate General noted in point 65 of her Opinion, the right of access to documents held by the institutions within the meaning of Article 2(3) of Regulation No 1049/2001 applies only to existing documents in the possession of the institution concerned.
46. Neither Article 11 of Regulation No 1049/2001 nor the obligation of assistance in Article 6(2) thereof, can oblige an institution to create a document for which it has been asked to grant access but which does not exist.
62. It must be observed that, where there are no indications that the excessive length of the proceedings before the General Court affected their outcome, failure to deliver judgment within a reasonable time cannot lead to the setting aside of the judgment under appeal (judgment in Groupe Gascogne  v Commission , C‑58/12 P, EU:C:2013:770, paragraph 73).
64. The argument alleging that the rejection of the appellant’s claim for compensation, based on the same grounds as those relating to the length of the proceedings, must also be rejected. It is clear from the case-law of the Court of Justice that it is for the General Court, which has jurisdiction under Article 256(1) TFEU, to determine such claims for damages, sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised (judgment in Groupe Gascogne  v Commission , EU:C:2013:770, paragraph 90).
68.  However, it is clear from the documents in the file that the appellant received the documents concerned sufficiently in advance of the hearing, that is in October 2008 at the latest, to allow him to examine them and adopt a position on their content (see, to that effect judgment in Corus UK  v Commission , C‑199/99 P, EU:C:2003:531, paragraph 21).
70. It is clear from the case-law of the Court that, where a request based on Regulation No 1049/2001 seeks to obtain access to documents including personal data, the provisions of Regulation No 45/2001 become applicable in their entirety (judgment in Commission  v Bavarian Lager , C‑28/08 P EU:C:2010:378, paragraph 63).
73. In that connection, it must be observed that the General Court is obliged to order the production of such a document and to examine it only if it is argued that the information concerned by the refusal of access falls within the scope of the exceptions laid down in Article 4 of Regulation No 1049/2001 (judgment in Jurašinović v Council , C‑576/12 P, EU:C:2013:777, paragraphs 27 and 29).
74. Thus, since the appellant disputed the merits of the reasoning in the decisions by which the Commission granted access to a certain number of documents whose content was partially blanked out in order to protect personal data, without claiming that the exceptions provided for in Article 4 were inapplicable to them, the General Court was not obliged to examine those documents (see, to that effect, judgment in Jurašinović v Council , EU:C:2013:777, paragraphs 28 to 30).
77. In that connection, it must be recalled that the General Court is the sole judge of any need to supplement the information available to it concerning the cases before it. The question whether the procedural documents before it are persuasive is a matter to be appraised by it alone (judgment in E.ON Energie  v Commission , C‑89/11 P, EU:C:2012:738, paragraph 115).
79. Finally, as regards the argument relating to the incomplete provision of documents relating to the refused confirmatory applications, it must be recalled that the General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence, save where the facts or evidence are distorted (judgment in Rousse Industry  v Commission , C‑271/13 P, EU:C:2014:175, paragraph 81). There will be distortion where, in particular, the General Court has manifestly exceeded the limits of a reasonable assessment of the evidence.
90. More specifically, as regards the decision of 23 October 2007 relating to the OLAF documents, the appellant’s argument that a decision adopted on the basis of Article 7 of Regulation No 1049/2001 cannot be replaced by an implied decision under Article 8(3) thereof is based on an incorrect interpretation of that decision. It is clear from the case-law of the Court that it is necessary to look to the actual substance of the acts challenged in order to classify them and that the form in which an act or decision is adopted is, in principle, irrelevant in that regard (see, by analogy, judgment in NDSHT  v Commission , C‑322/09 P, EU:C:2010:701, paragraph 46).
101. As regards the challenge to the judgment under appeal regarding the ruling by the General Court that the deletion of personal data by the Commission under the exception to the right of access to documents laid down in Article 4(1)(b) of Regulation No 1049/2001was lawful, the case-law of the Court of Justice provides that the provisions of Regulation No 45/2001, of which Articles 8(b) and 18 constitute essential provisions, become applicable in their entirety where an application based on Regulation No 1049/2001 seeks to obtain access to documents containing personal data (judgment in Commission  v Bavarian Lager , EU:C:2010:378, paragraphs 63 and 64).
102. The communication of such data falls within the definition of ‘processing’, for the purposes of Regulation No 1049/2001 (judgment in Commission  v Bavarian Lager , EU:C:2010:378, paragraph 69).
107. On the contrary, it is for the person applying for access to establish the necessity of transferring that data (see judgment in Commission  v Bavarian Lager , EU:C:2010:378, paragraph 77).
108. The appellant’s argument that, in the light of Article 8(a) of Regulation No 45/2001, the Commission was required to transmit personal data to him on the ground that access to documents held by the institutions under Regulation No 1049/2001 is always in the public interest must be dismissed. As the Advocate General noted in point 154 of her Opinion, such an argument runs counter to the obligation on the applicant for access to establish the necessity of transferring personal data set out in the preceding paragraph.
115. However, the General Court was correct to confirm the lawfulness of the application of that provision by the Commission since, as already observed in paragraphs 70 and 71 of the present judgment, reliance on Article 4(1)(b) of Regulation No 1049/2001 necessarily implies the applicability of Regulation No 45/2001 (judgment in Commission  v Bavarian Lager , EU:C:2010:378, paragraph 63).
128. Finally, it must be observed that the appellant’s criticism relating to paragraph 229 of the judgment under appeal is unfounded. First, it is clear from that paragraph that the Commission did in fact examine the existence of overriding public interests. Second, the case-law of the Court provides that it is for the applicant to show that there is an overriding public interest to justify the disclosure of the documents concerned (see judgment in LPN and Finland  v Commission , C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 94).
130. It is true that that the overriding public interest capable of justifying the disclosure of a document need not necessarily be distinct from the principles which underlie Regulation No 1049/2001 (judgment in LPN and Finland  v Commission , EU:C:2013:738, paragraph 92).
131. However, as the General Court held, in paragraph 229 of the judgment under appeal, such general considerations cannot provide an appropriate basis for establishing that, in the present case, the principle of transparency was in some sense especially pressing and capable, therefore, of prevailing over the reasons justifying the refusal to disclose the documents in question (judgment in LPN and Finland  v Commission , EU:C:2013:738, paragraph 93).
145. According to settled case-law, the Courts of the European Union cannot, in principle, issue orders to an EU institution without encroaching upon the prerogatives of the administration (see judgments in Verzyck  v Commission , 225/82, EU:C:1983:165, paragraph 19, and Campogrande  v Commission , C‑62/01 P, EU:C:2002:248, paragraph 43).
147. That finding cannot be called into question by the appellant’s arguments based on Article 47 of the Charter, since that article is not intended to change the system of judicial review laid down by the Treaties (see judgment in Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 97).
151. It should be recalled that, under the second paragraph of Article 58 of the Statute of the Court of Justice of the European Union, no appeal shall lie regarding only the amount of the costs or the party ordered to pay them. Moreover, according to settled case-law, where all the other pleas put forward in an appeal have been rejected, any plea challenging the decision of the General Court on costs must be rejected as inadmissible by virtue of that provision.