ClientEarth v European Commission.
Date: 2015-07-16
27. First, ClientEarth claims, relying on the judgments in Fediol  v Commission  (70/87, EU:C:1989:254) and Nakajima  v Council (C‑69/89, EU:C:1991:186), that the General Court was wrong to have determined whether Article 4 of the Aarhus Convention was directly applicable, whereas such a determination was not required in order to review the compatibility of the third indent of Article 4(2) of Regulation No 1049/2001 with the Aarhus Convention.
33. That preliminary comment having been made, it must be recalled that, under Article 216(2) TFEU, international agreements concluded by the Union are binding upon the institutions of the Union and consequently prevail over the acts laid down by those institutions (judgments in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht , C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 52 and case-law cited, and Council and Commission  v Stichting Natuur en Milieu and Pesticide Action Network Europe , C‑404/12 P and C‑405/12 P, EU:C:2015:5, paragraph 44 and case-law cited).
34. It follows that the validity of an act of the Union may be affected by the incompatibility of that act with such rules of international law (judgment in Air Transport Association of America and Others , C‑366/10, EU:C:2011:864, paragraph 51).
35. As stated by the General Court in paragraph 91 of the judgment under appeal, it is however clear from the Court’s settled case-law that the Courts of the European Union can undertake an examination of the alleged incompatibility of an act of the European Union with the provisions of an international agreement to which the Union is a party only where (i) the nature and the broad logic of that agreement do not preclude it and (ii) those provisions appear, as regards their content, to be unconditional and sufficiently precise (see the judgments in IATA and ELFAA , C‑344/04, EU:C:2006:10, paragraph 39; Intertanko and Others , C‑308/06, EU:C:2008:312, paragraph 45; and Air Transport Association of America and Others , C‑366/10, EU:C:2011:864, paragraph 54).
36. It is admittedly true that the Court has also held that, where the European Union intends to implement a particular obligation assumed under the agreements concluded in the context of the World Trade Organisation (WTO) or where the European Union legal measure refers expressly to specific provisions of those agreements, it is for the Court, when appropriate, to review the legality of the Union measure at issue in the light of the WTO rules (see, to that effect, the judgments in Fediol  v Commission , 70/87, EU:C:1989:254, paragraphs 19 to 22, and Nakajima v Council , C‑69/89, EU:C:1991:186, paragraphs 29 to 32; see, also, the judgment in LVP , C‑306/13, EU:C:2014:2465, paragraph 47 and case-law cited).
38. It follows that the General Court was correct, first, not to have taken into consideration the case-law stemming from the judgments in Fediol  v Commission  (70/87, EU:C:1989:254) and Nakajima  v Council (C‑69/89, EU:C:1991:186), and, second, to have determined whether the provisions in Article 4(1) and (4)(c) of the Aarhus Convention are, as regards their content, unconditional and sufficiently precise.
48. In this part, ClientEarth maintains that that concept presupposes the existence of a formal decision of the Commission as a college. ClientEarth refers, in that regard, to the judgments in Commission  v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376); Commission  v Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393); LPN and Finland  v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738); WWF UK  v Commission (T‑105/95, EU:T:1997:26); Bavarian Lager  v Commission (T‑309/97, EU:T:1999:257); Petrie and Others  v Commission (T‑191/99, EU:T:2001:284); and API  v Commission (T‑36/04, EU:T:2007:258).
50. Relying on the judgment in Mecklenburg (C‑321/96, EU:C:1998:300, paragraphs 27 and 30), ClientEarth adds that, even if it were accepted that the contested studies are part of the preliminary stage of formal infringement proceedings, the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 can justify a refusal to disclose only in the event that the existence of the document requested immediately precedes the opening of a contentious or quasi-contentious procedure and arises from the need to obtain proof or to investigate a matter prior to the opening of the actual procedure. Yet in this case, the contested studies did not immediately precede a decision to initiate, following an investigation, infringement proceedings under Article 258 TFEU.
57. The aim of Regulation No 1049/2001 is to give the public a right of access to documents of the institutions of the European Union which is as wide as possible. It is also apparent from that regulation, in particular from Article 4 thereof, which lays down a system of exceptions in that regard, that that right is, nevertheless, subject to certain limits based on reasons of public or private interest (see judgments in LPN and Finland  v Commission , C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 40 and case-law cited, and Commission  v EnBW , C‑365/12 P, EU:C:2014:112, paragraph 61 and case-law cited).
68. In that regard, in accordance with well-established case-law, in order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) and (3) of Regulation No 1049/2001. The institution concerned must also provide explanations as to how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article (judgment in Commission  v EnBW , C‑365/12 P, EU:C:2014:112, paragraph 64 and case-law cited).
69. It is however open to the EU institution concerned 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 in Commission  v EnBW , C‑365/12 P, EU:C:2014:112, paragraph 65 and case-law cited).
72. For reasons comparable to those set out in detail by the Court in the judgment in LPN and Finland  v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 52 to 65), the Commission was entitled to consider that the full disclosure of the contested studies which, when the express decision was adopted, had already led it to send a letter of formal notice to a Member State, under the first paragraph of Article 258 TFEU, and had, consequently, been placed in a file relating to the pre-litigation stage of infringement proceedings, would have been likely to disturb the nature and progress of that stage of proceedings, by making more difficult both the process of negotiation between the Commission and the Member State and the pursuit of an amicable agreement whereby the alleged infringement could be brought to an end, without it being necessary to resort to the judicial stage of those proceedings. The Commission was, consequently, justified in considering that such full disclosure would have undermined the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.
74. First, the documents in a file relating to the pre-litigation stage of infringement proceedings constitute, as regards protection of the purpose of investigations, a single category of documents, and no distinction should be made on the basis of the type of document forming part of the file or of the author of the documents in question (see, to that effect, judgment in LPN and Finland  v Commission , C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 64).
77. As regards, on the other hand, the contested studies other than those referred to in paragraphs 71 to 76 of this judgment, it must, first, be observed that, as the law stands, the Court has recognised five types of documents which enjoy a general presumption of confidentiality: the documents in an administrative file relating to a procedure for reviewing State aid (the judgment in Commission  v Technische Glaswerke Ilmenau , C‑139/07 P, EU:C:2010:376); the pleadings lodged by an institution in court proceedings (the judgment in 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); the documents exchanged between the Commission and notifying parties or third parties in the course of merger control proceedings (the judgment in Commission  v Éditions Odile Jacob C‑404/10 P, EU:C:2012:393, paragraph 123); the documents concerning an infringement procedure during its pre-litigation stage (the judgment in LPN and Finland  v Commission , C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 65); and the documents relating to a proceeding under Article 101 TFEU (the judgment in Commission v EnBW , C‑365/12 P, EU:C:2014:112, paragraph 93).
78. In all the cases which gave rise to the judgments cited in the preceding paragraph, 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 (see, to that effect, the judgments in Commission v Technische Glaswerke Ilmenau , C‑139/07 P, EU:C:2010:376, paragraphs 12 to 22; 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 75; Commission  v Éditions Odile Jacob , C‑404/10 P, EU:C:2012:393, paragraph 128; LPN and Finland  v Commission , C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 49 and 50; and Commission  v EnBW , C‑365/12 P, EU:C:2014:112, paragraphs 69 and 70). That cannot however be said of the contested studies other than those referred to in paragraphs 71 to 76 of this judgment.
79. Second, while, as stated in paragraph 72 of this judgment, the Commission could justifiably take the view, in general terms, that the disclosure of documents relating to the pre-litigation stage of infringement proceedings would have jeopardised the proper progress of that stage and the pursuit, in a climate of mutual trust, of an amicable resolution to the dispute between the Commission and the Member State under investigation, such a general presumption could not, on the other hand, prevail with respect to those of the contested studies which, when the express decision was adopted, had not led to the sending by the Commission of a letter of formal notice to the Member State concerned, under the first paragraph of Article 258 TFEU, and where, consequently, it remained uncertain, at that time, that the outcome of those studies would be the opening of the pre-litigation stage of infringement proceedings against that Member State. It must, in that regard, be recalled that the Commission, when it considers that a Member State has failed to fulfil its obligations, remains free to assess whether it is appropriate to bring legal proceedings for infringement and to decide when it will initiate infringement proceedings against that Member State (see, to that effect, the judgment in LPN and Finland  v Commission , C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 61).
81. Such reasoning is incompatible with the requirement that such a presumption must be interpreted and applied strictly, since that presumption is an exception to the rule that the institution concerned is obliged to make a specific and individual examination of every document which is the subject of an application for access (see, to that effect, the judgment in LPN and Finland  v Commission , C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 44 and case-law cited) 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 (see, to that effect, judgments in Sweden  v MyTravel and Commission , C‑506/08 P, EU:C:2011:496, paragraph 48, and Council  v in ‘t Veld , C‑350/12 P, EU:C:2014:2039, paragraph 48).
85. In its third ground of appeal, to the effect that the General Court erred in its interpretation of the concept of ‘overriding public interest’, within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001, ClientEarth claims that the findings of the General Court in paragraphs 107 to 109 of the judgment under appeal amount to its being required to bear the burden of proof rather than the Commission, which is contrary both to that provision and to the case-law of the Court which requires the institution concerned to undertake, subject to review by the Courts of the European Union, a weighing of the competing interests, starting with a presumption that an overriding public interest exists (see, to that effect, judgment in Sweden and Turco  v Council , C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 44 and 45).
89. In that regard, it must be recalled that such a general presumption does not rule out the possibility of demonstrating that there exists, under the last clause of Article 4(2) of Regulation No 1049/2001, an overriding public interest justifying the disclosure of the document concerned (see, to that effect, judgment in Commission  v EnBW , C‑365/12 P, EU:C:2014:112, paragraph 100 and case-law cited).
90. It is however for the party requesting access to refer to specific circumstances to establish an overriding public interest which justifies the disclosure of the documents concerned (judgment in Strack  v Commission , C‑127/13 P, EU:C:2014:2250, paragraph 128 and case-law cited).
92. In that regard, it is true that the overriding public interest which may justify the disclosure of a document need not necessarily be distinct from the principles which underlie Regulation No 1049/2001 (see, to that effect, judgments in Sweden and Turco  v Council , C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 74, and Strack  v Commission , C‑127/13 P, EU:C:2014:2250, paragraph 130).
93. However, as the General Court correctly held in paragraph 109 of the judgment under appeal, considerations as general as those relied on by ClientEarth are not capable of demonstrating that the principles of transparency and democracy raised in this case issues of particularly pressing concern which could have prevailed over the reasons justifying the refusal to disclose in their entirety the contested studies placed in a file relating to the pre-litigation phase of infringement proceedings (see, to that effect, judgments in LPN and Finland  v Commission , C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 93 and 95, and Strack  v Commission , C‑127/13 P, EU:C:2014:2250, paragraph 131).
101. In that regard, it follows from the considerations set out in paragraphs 77 to 83 of this judgment that the Commission was not entitled to rely, as it did in this case, on the general presumption that the full disclosure of those studies would have undermined the protection of the purpose pursued by its investigations. With respect to each of those studies, the Commission ought, on the contrary, to have examined and explained how such full disclosure would have actually and specifically undermined the interest protected by the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgment in LPN and Finland  v Commission , C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 44 and case-law cited).