Olli Mattila v Council of the European Union and Commission of the European Communities.
Date: 2004-01-22
15.  By letter of 5 July 1999 addressed to the applicant ' s legal adviser, the Commission refused the applicant ' s confirmatory application. The Secretary-General stated, first of all, that the fourth document mentioned (Annex to the minutes of the meeting of the EU-Russia Cooperation Committee, of 7 April 1998, Doc. Séance No 23/98 (Working Party on Eastern Europe and Central Asia)) could not be identified. He then went on:
" Having examined your request for the other documents, I have to confirm that I cannot make these documents available to you, as they are covered by the mandatory exception of the protection of the public interest, in particular international relations. This exception is expressly foreseen in the Code of Conduct concerning public access to Commission and Council documents adopted by the Commission on [8] February 1994.
Each of the documents requested contains detailed information on the position the European Union intends to take in its relations with Russia. Disclosure of these documents can thus undermine the position of the EU in current and future negotiations with this third country and [they] therefore cannot be made available to you.
These documents have been prepared by the Commission services for the use of the respective Council bodies. As the Council has refused access to similar documents for the same reasons as stated above, the Commission is not in a position, for that reason as well, to give you access to the documents.
"
16.  The General Secretariat of the Council prepared a draft reply which was first considered by the   " Working Party on Information"  of the Permanent Representative ' s Committee (Coreper) at its meeting on 23 June 1999. All the delegations approved the General Secretariat ' s draft response, refusing to disclose the documents on the basis of Article 4(1) of Decision 93/731. The draft reply then appeared as an   " I-item"  on the agenda for the 30 June 1999 meeting of Coreper II, which consists of the permanent representative ambassadors of the Member States to the European Union, and then as an   " A-item"  on the Council ' s agenda; it was approved by the Council on 12 July 1999. The General Secretariat notified the applicant of the negative response by letter of 14 July 1999. That letter reads as follows:
" The Council carefully considered the abovementioned documents and came to the following conclusions:
1. DS 27/98: EU-USA background note on Ukraine, drafted by the services of the European Commission for examination by the Working Party on Eastern Europe and Central Asia. The document describes in a very precise manner the EU position and priority objectives for the negotiations to be conducted with the United States vis-à-vis Ukraine. Disclosure of this strategy could be harmful to the EU interests in these negotiations as well as in other similar negotiations with third countries.
Furthermore, disclosure of the comments and considerations as they are contained in the document could have a negative effect on the EU relations with Ukraine.
For these reasons, the Council, in agreement with the European Commission, decided that the document cannot be released by virtue of Article 4(1) of ... Decision [93/731] (international relations).
2. DS 40/98: annotated draft agenda for the first Cooperation Council EU-Ukraine (8/9 June 1998) put to the Working Party on Eastern Europe and Central Asia by the services of the European Commission.
The document contains extensive comments, including EU positions and objectives, on each of the items on the agenda. Disclosure of these comments could be harmful to the EU ' s position in future Cooperation Council meetings as well as to its relations with Ukraine in general.
The Council therefore decided, in agreement with the European Commission, that the document cannot be released by virtue of Article 4(1) of ... Decision [93/731] (international relations).
3. COREU CFSP/SEC/0203/98: confidential report of the meeting between the Troika of the Eastern Europe/Central Asia Working Group and the United States (Washington, 10 February 1998).
The document contains extensive comments revealed by the US delegation at the Troika meeting, which took place in a confidential framework. It also contains EU and US assessments of third countries ' situations and policies, disclosure of which could jeopardise the EU negotiating position with these countries.
The Council therefore decided that the document cannot be made available by virtue of Article 4(1) of ... Decision [93/731] (international relations).
4. COREU CFSP/PRES/1239/98: COEST Caspian Energy: Draft EU/US statement. This confidential document was established in preparation of the EU negotiating position with the United States on the subject of Caspian energy. Disclosure of the information contained in the document could be harmful to the EU interests in these still ongoing negotiations as well as in other similar negotiations to be conducted in the future.
The Council therefore decided that the document cannot be made available by virtue of Article 4(1) of ... Decision [93/731] (international relations).
5. COREU CFSP/PRES/LON/1244/98: COEST: Russia/Latvia: meeting with Mr Primakov (8 May 1998). This document contains comments revealed by Mr Primakov in the confidential framework of a bilateral meeting between Foreign Ministers.
The document furthermore contains EU and Russian assessments of third countries ' situations and policies, as well as of negotiations taking place with the third countries in question. Disclosure of these assessments could jeopardise the EU and Russian relations as well as the negotiating positions with these countries.
The Council therefore decided that the document cannot be made available by virtue of Article 4(1) of ... Decision [93/731] (international relations).
"
"
The contested judgment
4. On 23 September 1999 Mr Mattila brought an action before the Court of First Instance seeking principally the annulment of the contested decisions.
5. By the contested judgment the Court of First Instance dismissed, first, as manifestly inadmissible, the sixth, seventh and eighth pleas relating to breach of the   " principle of independent review" , misuse of powers and breach of the duty of cooperation and, second, as unfounded, the five other pleas relied on by Mr Mattila alleging manifest error of assessment in interpreting the exception concerning the protection of international relations and breach of the principle of proportionality, in that partial access to the documents in question had not been granted or even considered (first and second pleas); breach of the principle that an application for access to documents must be considered with regard to each individual document and failure in the duty to state reasons (third and fourth pleas); and failure to take account of his private interest in having access to the documents (fifth plea). The Court of First Instance also dismissed Mr Mattila ' s application for the production of documents.
6. In answer to the second plea, the Court of First Instance held inter alia:
" 68. It is clear from the judgment in  Hautala  v  Council  that the principle of proportionality permits the Council and the Commission, in particular cases where the volume of the document or the passages to be removed would give rise to an unreasonable amount of administrative work, to balance the public ' s interest in gaining access to those fragmentary parts against the burden of work so caused (paragraph 86 of the judgment). The Council and the Commission could thus, in those particular cases, safeguard the interests of good administration.
69.  Similarly, whilst, in accordance with  Hautala  v  Council , the Council and the Commission are required to consider whether access ought to be granted to information not covered by the exceptions, the principle of sound administration requires that the duty to grant partial access should not result in an administrative burden which is disproportionate to the applicant ' s interest in obtaining that information. In light of this, it is clear that the Council and the Commission are in any event entitled to refuse partial access in cases where examination of the documents in question shows that partial access would be meaningless because the parts of the documents that could be disclosed would be of no use to the applicant.
70.  During the course of these proceedings, the Council and the Commission have asserted that partial access was not possible in this case, because the parts of the documents to which access could have been granted contained so little information as to be of no use to the applicant. At the hearing, the Council submitted that the documents in question cannot generally be taken individually, and that their component parts are not easily removable.
71.  The defendant institutions do not therefore dispute that they failed to consider the possibility of granting partial access to the documents in question. Nevertheless, having taken account of the explanations they have proffered and in view of the nature of the documents in question, it seems that, had they done so, they would not in any event have agreed to partial access. Given the particular circumstances of the present case, the fact that the defendant institutions failed to consider the question of granting partial access had no effect on the outcome of their examination (see, to that effect, Case T-75/95  Günzler Aluminium  v  Commission  [1996] ECR II-497, paragraph 55, and Case T-106/95  FFSA and Others  v  Commission  [1997] ECR II-229, paragraph 199).
72.  In this connection, it is appropriate to stress the fact already mentioned that the documents at issue were prepared in the context of negotiations and contain information on the European Union ' s position as regards its relations with Russia and Ukraine and on negotiations to be held with the United States on the subject of Ukraine. The fact that the documents are sensitive is corroborated by the applicant ' s statement at the hearing to the effect that the Supreme Court of Finland condemned him for having communicated to Russia certain other documents whose content was almost identical to that of the documents to which access was denied him by the defendant institutions.
73.  Secondly, the Council ' s assertion that the documents in question cannot easily be taken separately and that their component parts are not easily removable is uncontested. It must be observed in this connection that the applicant has no basis for alleging that document COREU CFSP/PRES/1239/98 contains, inter alia, a draft of an EU/United States statement which, precisely because of its public nature, ought to have been divulged. The fact that that document contains information which was the subject of a public statement does not mean that the Council was under an obligation to divulge the draft of that statement which, by definition, was purely a preparatory document intended for internal use only. As the Council emphasised during the hearing, there are, generally speaking, differences between the draft of a statement and the final text that may point up differences of opinion which must remain confidential. Furthermore, the public ' s right to be informed is adequately protected by its right of access to the final version of the statement.
74.  It follows that the defendant institutions did not infringe the principle of proportionality by failing to grant partial access to the documents at issue.
"
The appeal
7. Mr Mattila states that he repeats in his appeal all the pleas raised before the Court of First Instance and that he had requested the latter to:
─ annul the decisions of the Council and the Commission which the present application concerns;
─ invite the Council and the Commission to reconsider their position and give him access to the requested documents listed in the application letters;
─ give access, at least partial access, to such documents after cancelling or editing the sections which may justifiably qualify as liable to prejudice the international relations of the European Community;
─ order jointly the Council and the Commission to pay the costs.
8. The Council contends that the Court should:
─ dismiss the appeal as inadmissible in so far as the Court is asked to invite the Council and the Commission to reconsider their position and give the appellant access to the requested documents listed in the application letters and to give access, at least partial access, to such documents after cancelling or editing the sections which may justifiably qualify as liable to prejudice the international relations of the European Community;
─ dismiss the rest of the appeal as unfounded;
─ order the appellant to pay the costs of these proceedings.
9. The Commission contends that the Court should:
─ declare the appeal wholly inadmissible, and
─ order the appellant to pay the costs of these proceedings,
or in the alternative,
─ declare the appeal inadmissible in part in so far as the Court has been requested to issue directions to the institutions and to re-examine the ruling on the admissibility of the pleas alleging breach of duty of independent review, misuse of power, and failure to comply with the duty to cooperate, and
─ dismiss the remainder of the appeal, and
─ order the appellant to pay the costs of these proceedings.
Admissibility of the appeal
Arguments of the parties
10. The Council asserts that the appeal is manifestly inadmissible in so far as Mr Mattila requests the Court to call on the Council and the Commission to grant him at least partial access to the documents at issue (points 2 and 3 of the appellant ' s form of order). Neither the Court of First Instance nor the Court of Justice is entitled, when exercising its power of judicial review, to issue directions to the institutions or to assume the role assigned to them, including in relation to access to documents.
11. The Council adds that it is for the Court to assess whether the appeal otherwise meets the requirements of the case-law, according to which an appeal cannot be directed merely at re-examination of the application submitted to the Court of First Instance. Mr Mattila essentially confines himself to repeating the arguments previously submitted to the Court of First Instance, which were addressed in the contested judgment. The only new legal argument relied on by Mr Mattila, based on the Opinion of Advocate General Léger in Case C-353/99 P  Council  v  Hautala  [2001] ECR I-9565, concerns the question of partial access to the documents.
12. The Commission considers that the appeal is manifestly inadmissible. In disregard of the requirements of the case-law, the appeal essentially repeats the arguments already submitted to and addressed by the Court of First Instance, and thus consists essentially of a request for re-examination of the original application. Contrary to Mr Mattila ' s arguments, the issue of proportionality and partial access was fully argued by the parties and considered by the Court of First Instance on the basis of its reasoning in Case T-14/98  Hautala  v  Council  [1999] ECR II-2489, which has been since confirmed by the Court of Justice in  Council  v  Hautala .
13. Alternatively, the Commission submits, like the Council, that the second and third heads of claim are clearly inadmissible.
Findings of the Court
14. As regards the argument relating to the partial inadmissibility of the form of order, it is clear from paragraph 7 of the present judgment that by his appeal Mr Mattila asks the Court, first, to annul the contested decisions, second, to invite the Council and the Commission to reconsider their position and give him access to the requested documents as listed in his letters of 8 March 1999, third, to grant him at least partial access to the documents after cancelling or editing the sections which may justifiably qualify as liable to prejudice the international relations of the European Community and, fourth, to order the Council and the Commission jointly to pay the costs.
15. As the Court of First Instance held in paragraph 26 of the contested judgment, the Community judicature is not entitled, when exercising judicial review of legality on the basis of Article 230 EC, to issue directions (see in particular, in respect of an appeal, Case C-5/93 P  DSM  v  Commission  [1999] ECR I-4695, paragraph 36).
16. In those circumstances, the appeal is inadmissible in so far as by its second and third pleas the Court is requested to invite the Council and Commission to reconsider their position and grant the appellant access to the documents at issue, or to grant him at least partial access to the documents after cancelling or editing the sections which may justifiably qualify as liable to prejudice the international relations of the European Community.
25. According to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-41/00 P  Interporc  v  Commission  [2003] ECR I-2125, paragraph 15).
26. Where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see, inter alia,  Interporc  v  Commission , cited above, paragraph 16).
27. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see, inter alia,  Interporc  v  Commission , paragraph 17).
30. It is clear from the case-law of the Court that those institutions are obliged, under Decisions 93/731 and 94/90 respectively, and in accordance with the principle of proportionality, to examine whether partial access should be granted to the information not covered by the exceptions, in the absence of which a decision refusing access to a document must be annulled as being vitiated by an error of law (in connection with Decision 93/731, see  Council  v  Hautala , paragraphs 21 to 31).
32. As the Advocate General explained in paragraphs 59 and 62 of his Opinion, permitting the Council and the Commission to communicate to the appellant the reasons for the refusal to grant partial access to a document for the first time before the Community courts would render redundant the procedural guarantees expressly laid down in Decisions 93/731 and 94/90 and seriously affect the appellant ' s rights which require that, except in exceptional cases, any decisions adversely affecting a person must state the reasons on which it is based, in order to provide the person concerned with details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested (see, in particular, Case 195/80  Michel  v  Parliament  [1981] ECR 2861, paragraph 22).