Liga para a Protecção da Natureza (LPN) and Republic of Finland v European Commission.
Date: 2013-11-14
40. As a preliminary point, it is necessary to bear in mind that, under paragraphs 1 and 2 of Article 255(1) and (2) EC, any citizen of the Union, and any natural or legal person residing or having its office in a Member State, is to have a right of access to documents of the Union’s institutions, subject to the principles and the conditions to be defined in accordance with the procedure laid down in Article 251 EC. Regulation No 1049/2001 seeks, as indicated in recital 4 of the preamble and Article 4, to give the public a right of access to documents of the institutions which is as wide as possible. It is also apparent from that regulation, in particular from recital 11 of the preamble and Article 4, 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 Commission  v Technische Glaswerke Ilmenau , paragraph 51; Sweden and Others  v API and Commission , paragraphs 69 and 70; Case C‑404/10 P Commission  v Éditions Odile Jacob  [2012] ECR I‑0000, paragraph 111; and Case C‑477/10 P Commission  v Agrofert Holding  [2012] ECR I‑0000, paragraph 53).
42. It follows that the system of exceptions laid down in Article 4 of that regulation, particularly in paragraph 2 thereof, is based on a balancing of the opposing interests in a given situation, that is to say, firstly, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case.
44. 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) of Regulation No 1049/2001. The institution concerned must also supply explanations as to how access to that document could specifically and effectively undermine the interest protected by an exception laid down in that article ( Sweden and Turco  v Council , paragraph 49; Commission  v Technische Glaswerke Ilmenau , paragraph 53; Sweden and Others  v API and Commission , paragraph 72; Commission  v Éditions Odile Jacob , paragraph 116; and Commission  v Agrofert Holding , paragraph 57).
45. However, the Court has acknowledged that it is open to the 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 ( Sweden and Turco  v Council , paragraph 50; Commission  v Technische Glaswerke Ilmenau , paragraph 54; Sweden and Others  v API and Commission , paragraph 74; Commission  v Éditions Odile Jacob , paragraph 116; and Commission  v Agrofert Holding , paragraph 57).
46. As the Advocate General noted in points 57 to 62 of his Opinion, the Court has expressly acknowledged the existence of such general presumptions in three specific circumstances, namely as regards the documents in the administrative file concerning procedures for reviewing State aid ( Commission  v Technische Glaswerke Ilmenau , paragraph 61), the documents exchanged between the Commission and the notifying parties or third parties in the context of merger control procedures ( Commission  v Éditions Odile Jacob , paragraph 123, and Commission  v Agrofert Holding , paragraph 64), and the pleadings lodged by an institution in proceedings pending before the courts ( Sweden and Others v API and Commission,  paragraph 94).
47. All these cases shared the characteristic that the request for access in question covered not just one document but a set of documents (see Commission  v Technische Glaswerke Ilmenau , paragraph 50; Sweden and Others  v API and Commission , paragraph 9; Commission  v Éditions Odile Jacob , point 10, setting out paragraphs 1 and 2 of the judgment of the General Court under appeal in the appeal which gave rise to that judgment of the Court of Justice; and Commission  v Agrofert Holding , paragraph 7, setting out paragraph 2 of the judgment of the General Court under appeal in the appeal which gave rise to that judgment of the Court of Justice).
49. It is this type of situation which pertains in the present case. Like the application made by the interested party in the Commission  v Technische Glaswerke Ilmenau  case, which covered all the administrative file relating to the State aid which had been granted to it, LPN applied for access to a set of documents, described as a whole, appearing in the file relating to the infringement procedure opened against the Portuguese Republic regarding a dam construction project.
50. In addition, it is necessary to bear in mind that that application was made when that infringement procedure was still at the pre-litigation stage and that the procedure had neither been closed by the Commission nor brought before the Court of Justice when the contested decision was adopted.
52. In that regard, it is necessary, first of all, to take into consideration the first sentence of Article 6(1) of Regulation No 1367/2006.
53. Although, pursuant to Article 3 thereof, Regulation No 1049/200, and in particular Article 4 thereof, is to apply to any request by an applicant for access to environmental information held by Community institutions and bodies, Article 6 of Regulation No 1367/2006 adds more specific rules concerning such request for access which in part favour and in part restrict the access to the documents.
54. The first sentence of Article 6(1) of Regulation No 1367/2006, which lays down a rule intended to facilitate access to documents containing environmental information, provides that that rule does not apply to ‘investigations, in particular those concerning possible infringements of Community law’.
55. It follows that infringement procedures are regarded, by that European Union legislation, as a type of procedure which, as such, has characteristics precluding full transparency being granted in that field and which therefore has a special position within the system of access to documents.
56. In addition, the infringement procedure has characteristics which are comparable to those of a State aid review procedure, which led the Court of Justice to recognise the existence of a general presumption in that regard in the Commission  v Technische Glaswerke Ilmenau  case.
57. In both cases, it is a procedure initiated in respect of the Member State responsible, either for granting the aid (see Commission  v Technische Glaswerke Ilmenau , paragraph 57), or for the alleged infringement of European Union law.
58. The Court of Justice also based its findings on the fact that the interested parties, except for the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file and that, if those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to those documents, the system for the review of State aid would be called into question (see Commission  v Technische Glaswerke Ilmenau , paragraphs 58 and 61).
59. Nor, with regard to infringement proceedings, does European Union law, in particular Article 226 EC, provide for the right for an individual to consult the file, even if the procedure has been brought about by that individual’s complaint. The Commission has merely conceded, in its internal rules of procedure relating to the administrative measures in favour of the complainant, that it will inform the complainant of the decisions adopted and of the proposal to close the file without further action (see Commission communication to the European Parliament and the European Ombudsman of 20 March 2002 on relations with the complainant in respect of infringements of Community law (COM/2002/0141 final; OJ 2002 C 244, p. 5, paragraphs 7, 9 and 10)).
60. Furthermore, in accordance with well-established case-law, a complainant in the context of an infringement procedure does not have the right to require the Commission to take a specific position and to bring an action against its refusal to take action against a Member State (see, to that effect, in particular, the judgments in Case 247/87 Star Fruit  v Commission  [1989] ECR I-291, paragraph 11, and Case C-87/89 Sonito and Others  v Commission  [1990] ECR I-1981, paragraph 6, and the order of 14 July 2011 in Case C-111/11 P Ruipérez Aguirre and ATC Petition  v Commission , paragraphs 11 and 12). In that regard, it is irrelevant whether the complainant is acting to defend a personal interest or a public interest.
61. It is for the Commission, when it considers that a Member State has failed to fulfil its obligations, to assess whether it is appropriate to act against that State, to ascertain the provisions which it has infringed and to choose when it will open the infringement procedure against it (see, in particular, Case C‑33/04 Commission  v Luxembourg  [2005] ECR I‑10629, paragraph 66 and the case-law cited, and the judgment of 7 October 2010 in Case C-154/09 Commission  v Portugal , paragraph 51). The subject-matter of an action for failure to fulfil obligations is determined by the Commission’s reasoned opinion (Case C-171/08 Commission  v Portugal  [2010] ECR I‑6817, paragraph 25 and the case-law cited).
62. What is more, it is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under European Union law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission (see, inter alia, Case C‑147/03 Commission  v Austria  [2005] ECR I-5969, paragraph 22, and Case C-522/09 Commission  v Romania  [2011] ECR I-2963, paragraph 15).
63. The disclosure of the documents concerning an infringement procedure during its pre-litigation stage would, in addition, be likely to change the nature and progress of that procedure, given that, in those circumstances, it could prove even more difficult to begin a process of negotiation and to reach an agreement between the Commission and the Member State concerned putting an end to the infringement alleged, in order to enable European Union law to be respected and to avoid legal proceedings.
64. Finally, contrary to the appellants’ submissions, the documents relating to the pre-litigation stage of an infringement procedure constitute a single category of documents for the purposes of applying the abovementioned general presumption. Firstly, the exception laid down, as regards investigations relative to possible infringements of Community law, in the first sentence of Article 6(1) of Regulation No 1367/2006 does not draw any distinction on the basis of the type of document forming part of the file relating to such investigations or of the author of the documents in question. Secondly, with regard to documents related to State aid review procedures, the Court of Justice has held that all the documents in the administrative file relating to such a procedure form a single category to which a general presumption that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigations applies ( Commission  v Technische Glaswerke Ilmenau , paragraph 61).
65. It follows from the foregoing considerations that it can be presumed that the disclosure of the documents concerning an infringement procedure during its pre-litigation stage risks altering the nature of that procedure and changing the way it proceeds and, accordingly, that disclosure would in principle undermine the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.
66. That general presumption does not exclude the possibility of demonstrating that a given document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001 (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraph 62; Sweden and Others  v API and Commission , paragraph 103; Commission  v Éditions Odile Jacob , paragraph 126; and Commission  v Agrofert Holding , paragraph 68).
67. In addition, the Commission is not required to base its decision on that general presumption. It may always carry out a specific examination of the documents covered by a request for access and provide such reasons. What is more, where it finds that the infringement procedure involved in a given request for access is of a nature which permits the full or partial disclosure of the documents in the file, it is obliged to make that disclosure.
68. However, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the Commission must examine individually each document requested in the case. Such a requirement would deprive that general presumption of its proper effect, which is to permit the Commission to reply to a global request for access in a manner equally global.
83. The first sentence of that paragraph 1 lays down a rule concerning the exceptions in the first and third indents of Article 4(2) of Regulation No 1049/2001. The second sentence of that paragraph 1 does not merely refer to the ‘other exceptions’, but the ‘other exceptions set out in Article 4 of Regulation [No 1049/2001]’. That provision thus refers to the exceptions in Article 4(1), (2), second indent, (3) and (5). Given that infringement procedures involve an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, which is referred to in the first sentence of Article 6(1) of Regulation No 1367/2006, that activity is not covered by the concept of ‘other exceptions’ set out in the second sentence of Article 6(1).
92. It is true that the overriding public interest capable of justifying the disclosure of a document must not necessarily be distinct from the principles which underlie Regulation No 1049/2001 (see, to that effect, Sweden and Turco  v Council , paragraphs 74 and 75).
93. Nevertheless, 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 (see, by analogy, Sweden and Others  v API and Commission , paragraph 158).
94. The requirement that an applicant rely on specific circumstances to show that there is an overriding public interest to justify the disclosure of the documents concerned is in accordance with the case-law of the Court of Justice (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraph 62; Sweden and Others  v API and Commission , paragraph 103; Commission  v Éditions Odile Jacob , paragraph 126; and Commission  v Agrofert Holding , paragraph 68).
95. In so far as LPN has requested access to those documents in order that it may be in a position to supplement the information held by the Commission concerning the dam construction project which is the subject-matter of the infringement procedure in question and, in consequence, may take an active part in that procedure, that fact does not show that there is an ‘overriding public interest’ within the meaning of Article 4(2) of Regulation No 1049/2001 (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraph 70; Commission  v Éditions Odile Jacob , paragraphs 145 and 146; and Commission  v Agrofert Holding , paragraphs 85 and 86), even though LPN, as a non-governmental organisation, is acting in accordance with its statutory aims, which consist in the protection of the environment.
100. In that regard, suffice it to note that, 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 the second paragraph of Article 58 of the Statute of the Court of Justice of the European Union, which provides that no appeal is to lie regarding only the amount of the costs or the party ordered to pay them (see, inter alia, Joined Cases C‑57/00 P and C‑61/00 P Freistaat Sachsen and Others  v Commission  [2003] ECR I‑9975, paragraph 124; Case C‑301/02 P Tralli  v ECB  [2005] ECR I‑4071, paragraph 88; and Case C‑263/09 P Edwin  v OHIM  [2011] ECR I‑5853, paragraph 78).
105. The additional request of LPN seeks not to have the judgment under appeal set aside, even in part, that is to say the operative part thereof (see Joined Cases C‑539/10 P and C‑550/10 P Al-Aqsa  v Council  and Netherlands  v Al-Aqsa [2012] ECR I‑0000, paragraph 44 and the case-law cited), but merely the amendment of one of the grounds of that judgment which will not affect its content or the outcome of the dispute at first instance. It is clear from the judgment under appeal, particularly paragraphs 18, 38 and 59 thereof, that the action dismissed in paragraph 1 of the operative part of that judgment referred to the decision of 22 November 2007.