Internationaler Hilfsfonds eV v European Commission.
Date: 2010-01-26
30. First, the Court of First Instance, in paragraphs 72 to 75 of the judgment under appeal, classified the letter of 8 July 2002 as an initial reply to an application for access to documents relating to the contract, for the purposes of Article 7(1) of Regulation No 1049/2001.
31. Second, the Court of First Instance, in paragraphs 76 to 79 of the judgment under appeal, classified the letter of 26 July 2002 as a reply to a confirmatory application, within the meaning of Article 8 of that regulation, sent to the Commission by IH on 11 July 2002.
43. The Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I-0000, paragraph 31, and case-law cited).
51. According to settled case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment (see, inter alia, Case C-131/03 P Reynolds Tobacco and Others  v Commission  [2006] ECR I-7795, paragraph 54, and the case-law cited).
52. It is also apparent from settled case-law concerning the admissibility of actions for annulment that it is necessary to look to the substance of the contested acts, as well as the intention of those who drafted them, to classify those acts. In that regard, it is in principle those measures which definitively determine the position of the Commission upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the complainant, which are open to challenge and not intermediate measures whose purpose is to prepare for the definitive decision, or measures which are mere confirmation of an earlier measure which was not challenged within the prescribed period (see, to that effect, Case C-521/06 P Athinaïki Techniki  v Commission  [2008] ECR I-5829, paragraph 42).
53. With regard to  Regulation No 1049/2001, it should be pointed out that Articles 7 and 8 of that regulation, by providing for a two-stage procedure, aim to achieve, first, the swift and straightforward processing of applications for access to documents of the institutions concerned and, second, as a priority, a friendly settlement of disputes which may arise. For cases in which such a dispute cannot be resolved by the parties, the abovementioned Article 8(1) provides two remedies, namely the institution of court proceedings or the lodging of a complaint with the Ombudsman.
55. In order to ascertain whether a measure can be the subject of an action under Article 230 EC, it is necessary to look to its substance, rather than to the form in which it is presented (see Case 60/81 IBM  v Commission  [1981] ECR 2639, paragraph 9).
56. It should moreover be noted that Regulation No 1049/2001 confers a very extensive right of access to the documents of the institutions concerned, there being, in accordance with Article 6(1) of the regulation, no requirement to state reasons for the application in order to enjoy that right. In addition, under Article 4(7) of the regulation, the exceptions as laid down in paragraphs 1 to 3 of that article are to apply only for the period during which protection is justified on the basis of the content of the document.
57. It follows that a person may make a new demand for access relating to documents to which he has previously been denied access. Such an application requires the institution concerned to examine whether the earlier refusal of access remains justified in the light of a change in the legal or factual situation which has taken place in the meantime.
58. It must be held, in that regard, that the contested measure constitutes, in the light both of its content, which refers explicitly to a ‘definitive position’ of the Commission, and of the context in which it was adopted, a definitive refusal, by the Commission, to disclose all the documents requested by IH. That refusal brought to an end a long series of successive steps taken by IH over approximately three years, referred to in paragraphs 11 to 26 of the present judgment, seeking to obtain access to the documents relating to the contract and including several applications by it to that end.
62. In the light of all those factors, it must be held that the Court of First Instance was wrong to hold that the contested measure did not constitute a measure open to challenge which could be the subject of an action for annulment under Article 230 EC. It follows from the above considerations that, contrary to what was held by the Court of First Instance, an action against such a measure is admissible.