Kingdom of Sweden v Association de la presse internationale ASBL (API) and European Commission (C-514/07 P), Association de la presse internationale ASBL (API) v European Commission (C-528/07 P) and European Commission v Association de la presse internationale ASBL (API) (C-532/07 P).
Date: 2010-09-21
9. By letter of 1 August 2003, API – a non-profit-making organisation of foreign journalists based in Belgium – applied to the Commission, in accordance with Article 6 of Regulation No 1049/2001, for access to the written pleadings lodged by the Commission before the General Court or the Court of Justice in the proceedings relating to the following cases:
– Honeywell v Commission (T‑209/01) and General Electric v Commission (T‑210/01);
– MyTravel v Commission (T‑212/03);
– Airtours v Commission (T‑342/99);
– Commission v Austria (C‑203/03);
– Commission  v United Kingdom (C‑466/98); Commission v Denmark (C‑467/98); Commission v Sweden (C‑468/98); Commission v Finland (C‑469/98); Commission  v Belgium (C‑471/98); Commission v Luxembourg (C‑472/98); Commission v Austria (C‑475/98); and Commission v Germany (C‑476/98) (collectively, ‘the Open Skies  cases’);
– Köbler (C‑224/01); and
– Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00).
65. In that regard, it should be borne in mind that, although the Court must rule only on the heads of claim put forward by the parties, whose role it is to define the framework of the dispute, the Court cannot confine itself to the arguments put forward by the parties in support of their claims, or it might be forced, in some circumstances, to base its decisions on erroneous legal considerations (order of 27 September 2004 in Case C-470/02 P UER  v M6 and Others , paragraph 69).
67. However, as the Court of Justice has consistently held, such reasoning by extension does not, of itself, support a finding that the General Court went outside the framework of the dispute and ruled ultra petita  (see, to that effect, Case C‑252/96 P Parliament  v Gutiérrez de Quijano y Lloréns  [1998] ECR I‑7421, paragraph 34, and the order in UER  v M6 and Others , paragraph 74).
68. That said, it should be borne in mind in relation to the arguments raised by the Commission in support of the present plea, that, in accordance with recital 1 in the preamble to Regulation No 1049/2001, that regulation reflects the intention expressed in the second paragraph of Article 1 EU – inserted by the Treaty of Amsterdam – of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 in the preamble to Regulation No 1049/2001, the right of public access to documents of the institutions is related to the democratic nature of those institutions (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco  v Council  [2008] ECR I‑4723, paragraph 34).
69. To that end, Regulation No 1049/2001 is intended, as is apparent from recital 4 in its preamble and from Article 1, to give the fullest possible effect to the right of public access to documents of the institutions (see Case C‑266/05 P Sison  v Council  [2007] ECR I‑1233, paragraph 61; Case C‑64/05 P Sweden  v Commission  [2007] ECR I‑11389, paragraph 53; Sweden and Turco  v Council , paragraph 33; and Case C‑139/07 P Commission  v Technische Glaswerke Ilmenau  [2010] ECR I‑0000, paragraph 51).
70. However, that right is none the less subject to certain limitations based on grounds of public or private interest ( Sison  v Council , paragraph 62, and Commission  v Technische Glaswerke Ilmenau , paragraph 53).
71. More specifically, and in reflection of recital 11 in the preamble thereto, Article 4 of Regulation No 1049/2001 provides that the institutions are to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision.
72. Thus, if the Commission decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it is relying (see, to that effect, Sweden and Turco  v Council , paragraph 49, and Commission  v Technische Glaswerke Ilmenau , paragraph 53).
73. Of course, since they derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly ( Sison  v Council , paragraph 63; Sweden  v Commission , paragraph 66; and Sweden and Turco  v Council , paragraph 36).
74. Nevertheless, contrary to the assertions made by API, it is clear from the case-law of the Court of Justice that the institution concerned may base its decisions in that regard on general presumptions which apply to certain categories of document, as considerations of a generally similar kind are likely to apply to applications for disclosure which relate to documents of the same nature (see Sweden and Turco  v Council , paragraph 50, and Commission  v Technische Glaswerke Ilmenau , paragraph 54).
75. As it is, in the present case, none of the parties has disputed the conclusion reached by the General Court in paragraph 75 of the judgment under appeal that the pleadings to which access was requested had been drawn up by the Commission in its capacity as a party in three direct actions which were still pending on the date of adoption of the contested decision and that, for that reason, each of those sets of pleadings could be regarded as falling within the same category of documents.
76. Accordingly, it must be determined whether general considerations supported a finding that the Commission was entitled to base its decision on the presumption that disclosure of those pleadings would undermine the court proceedings and that, in so doing, it was not under an obligation to carry out a specific assessment of the content of each of those documents.
77. First and foremost in that connection, it should be noted that pleadings lodged before the Court of Justice in court proceedings are wholly specific since they are inherently more a part of the judicial activities of the Court than of the administrative activities of the Commission, those latter activities not requiring, moreover, the same breadth of access to documents as the legislative activities of an EU institution (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraph 60).
81. The purpose of that exclusion emerges even more clearly from Article 15 TFEU, which replaced Article 255 EC and which, while extending the scope of the principle of transparency, specifies – in the fourth subparagraph of paragraph 3 thereof – that the Court of Justice is to be subject to paragraph 3 only when exercising its administrative tasks.
84. Thus, it follows both from Article 255 EC and from Regulation No 1049/2001 that the limitations placed on the application of the principle of transparency in relation to judicial activities pursue the same objective: that is to say, they seek to ensure that exercise of the right of access to the documents of the institutions does not undermine the protection of court proceedings.
85. In that regard, it should be noted that the protection of court proceedings implies, in particular, that compliance with the principles of equality of arms and the sound administration of justice must be ensured.
88. Furthermore, it should be borne in mind in that regard that the principle of equality of arms – together with, among others, the principle of audi alteram partem – is no more than a corollary of the very concept of a fair hearing (see, by analogy, Case C‑305/05 Ordre des barreaux francophones et germanophone and Others  [2007] ECR I‑5305, paragraph 31; Case C‑89/08 P Commission  v Ireland and Others  [2009] ECR I‑0000, paragraph 50; and Case C‑197/09 RX‑II Réexamen M  v EMEA  [2009] ECR I‑0000, paragraphs 39 and 40).
89. As the Court has held, the principle of audi alteram partem  must apply to all parties to proceedings before the EU Courts, whatever their legal status. It follows that the EU institutions may also rely on that principle when they are parties to such proceedings (see, to that effect, Commission  v Ireland and Others , paragraph 53).
92. As regards, secondly, the sound administration of justice, the exclusion of judicial activities from the scope of the right of access to documents, without any distinction being drawn between the various procedural stages, is justified in the light of the need to ensure that, throughout the court proceedings, the exchange of argument by the parties and the deliberations of the Court in the case before it take place in an atmosphere of total serenity.
93. Disclosure of the pleadings in question would have the effect of exposing judicial activities to external pressure, albeit only in the perception of the public, and would disturb the serenity of the proceedings.
94. It is therefore appropriate to allow a general presumption that disclosure of the pleadings lodged by one of the institutions in court proceedings would undermine the protection of those proceedings, for the purposes of the second indent of Article 4(2) of Regulation No 1049/2001, while those proceedings remain pending.
96. In addition, such a presumption is also justified in the light of the Statute of the Court of Justice of the European Union and the Rules of Procedure of the EU Courts (see, by analogy, Commission  v Technische Glaswerke Ilmenau , paragraph 55).
97. Although the Statute of the Court of Justice provides that the hearing in court is to be public (Article 31), it restricts those entitled to receive communication of procedural documents to the parties and to the institutions whose decisions are in dispute (Article 20, second paragraph).
98. Similarly, the Rules of Procedure of the EU Courts provide for procedural documents to be served only on the parties to the proceedings. In particular, Article 39 of the Rules of Procedure of the Court of Justice, Article 45 of the Rules of Procedure of the General Court and Article 37(1) of the Rules of Procedure of the Civil Service Tribunal provide that the application is to be served only on the defendant.
99. It is clear, therefore, that neither the Statute of the Court of Justice nor the above Rules of Procedure provide for any third-party right of access to pleadings submitted to the Court in court proceedings.
100. Account must be taken of that fact for the purposes of interpreting the exception provided for under the second indent of Article 4(2) of Regulation No 1049/2001, for if third parties were able, on the basis of Regulation No 1049/2001, to obtain access to those pleadings, the system of procedural rules governing the court proceedings before the EU Courts would be called into question (see, by analogy, Commission  v Technische Glaswerke Ilmenau , paragraph 58).
102. On the contrary, it is precisely the existence of those Rules of Procedure, by which matters concerning the pleadings in question remain governed, and the fact that not only do they make no provision for a third-party right of access to the case-file but, in accordance with Article 31 of the Statute of the Court of Justice, they actually do provide that a hearing may be heard in camera  or that certain information, such as the names of parties, may be kept confidential, which lend authority to the presumption that disclosure of those pleadings would undermine court proceedings (see, by analogy, Commission  v Technische Glaswerke Ilmenau , paragraphs 56 to 58).
103. It is true that, as the Court has stated, such a general presumption does not exclude the right of an interested party to demonstrate that a given document, disclosure of which has been applied for, is not covered by that presumption ( Commission  v Technische Glaswerke Ilmenau , paragraph 62). The fact remains that, in the present case, it does not appear from the judgment under appeal that API availed itself of that right.
116. Where the appellant challenges the interpretation or application of EU law by the General Court, 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 General Court, an appeal would be deprived of part of its purpose (Case C‑234/02 P Ombudsman  v Lamberts  [2004] ECR I‑2803, paragraph 75).
119. The procedure established under Article 226 EC is designed to obtain a declaration that the conduct of a Member State is in breach of EU law and to terminate that conduct (see Joined Cases 15/76 and 16/76 France  v Commission  [1979] ECR 321, paragraph 27, and Case C‑456/05 Commission  v Germany  [2007] ECR I‑10517, paragraph 25), while the procedure provided for under Article 228 EC has a much narrower ambit, being designed only to induce a defaulting Member State to comply with a judgment establishing a breach of obligations (Case C‑304/02 Commission  v France  [2005] ECR I‑6263, paragraph 80).
126. As it is, in accordance with settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea and arguments which it did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas argued before the General Court (see Case C-266/97 P VBA  v VGB and Others  [2000] ECR I‑2135, paragraph 79; and Case C‑167/04 P JCB Service  v Commission  [2006] ECR I‑8935, paragraph 114; and, to that effect, the order of 21 January 2010 in Case C‑150/09 P Iride and Iride Energia  v Commission , paragraphs 73 and 74).
132. Admittedly, the possibility cannot be ruled out that – as the Commission alleges – disclosure of pleadings relating to court proceedings which are closed but connected to other proceedings which remain pending may create a risk that the later proceedings might be undermined, especially where the parties to the pending case are not the same as those to the case which has been closed. In such a situation, if the Commission were to use the same arguments in support of its legal position in both sets of proceedings, disclosure of its arguments in the pending proceedings could give rise to the risk that they might be undermined.
133. Nevertheless, such a risk depends on a number of factors, such as the degree of similarity between the arguments put forward in the two cases. If the Commission’s pleadings are repeated only in part, partial disclosure could be sufficient to prevent any risk of undermining the pending proceedings.
134. Accordingly, only a specific examination of the documents to which access is requested, undertaken in accordance with the criteria referred to in paragraph 72 above, can enable the Commission to establish whether their disclosure may be refused on the basis of the second indent of Article 4(2) of Regulation No 1049/2001.
158. Nevertheless, such vague 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.