1 By its appeal, Validity Foundation - Mental Disability Advocacy Centre (‘Validity’) seeks to have set aside the order of the General Court of the European Union of 22 November 2022, Validity v Commission (T‑640/20, EU:T:2022:752; ‘the order under appeal’), by which the General Court, first, held that there was no longer any need to adjudicate on its action in so far as it sought annulment of Commission Decision C(2020) 5540 final of 6 August 2020, by which that institution refused Validity access to documents relating to a draft call for proposals launched by the Hungarian authorities (‘the refusal decision’) and, second, dismissed that action as manifestly inadmissible in so far as it sought the annulment of Commission Decision C(2021) 2834 final of 19 April 2021, by which the Commission granted Validity access to those documents (‘the decision to grant’). Legal context
2 Recitals 4 and 13 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), state: ‘(4) The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access in accordance with [Article 15(3) TFEU]. … (13) In order to ensure that the right of access is fully respected, a two-stage administrative procedure should apply, with the additional possibility of court proceedings or complaints to the [European] Ombudsman.’
3 Article 4 of that regulation, entitled ‘Exceptions’, provides: ‘… 3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure. … 4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed. 5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement. …’
4 Article 7 of that regulation, under the heading ‘Processing of initial applications’, is worded as follows: ‘1. … Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article. 2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position. 3. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given. 4. Failure by the institution to reply within the prescribed time limit shall entitle the applicant to make a confirmatory application.’
5 Article 8 of that regulation, entitled ‘Processing of confirmatory applications’, provides: ‘1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles [263 and 228 TFEU], respectively. 2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given. 3. Failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the [FEU] Treaty.’ Background to the dispute
6 The background to the dispute, as described in paragraphs 2 to 9 of the order under appeal, may be summarised as follows.
7 In March 2017, the Hungarian authorities launched a call for proposals, in the amount of EUR 160 million, with a view to encouraging community-based living settings for persons suffering from, inter alia, mental health problems (‘the call for proposals’), the implementation of which was to be co-funded by the European Union, in accordance with Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ 2013 L 347, p. 320).
8 In May 2018, the Hungarian authorities suspended the call for proposals in order to re-examine, with the services of the European Commission, the tender specifications and the scope of that call.
9 By a request of 10 March 2020, received by the Commission on 16 March 2020, Validity, a non-governmental organisation whose objective is to defend persons with mental health or developmental disabilities or both, requested, on the basis of Regulation No 1049/2001, access to all the correspondence between the Commission and the Hungarian authorities concerning the call for proposals (‘the application for access’).
10 On 14 May 2020, the Commission informed Validity that it was granting it access to six of the nine documents identified as falling within the scope of its application for access, with the exception of the personal data contained therein and of a paragraph which it considered not to be covered by that request. By contrast, since the other three documents requested originated from the Hungarian authorities, the Commission, after consulting those authorities, refused to grant access to those documents, on the basis, inter alia, of Article 4(3) of Regulation No 1049/2001 (‘the three documents at issue’).
11 On 5 June 2020, Validity submitted, in accordance with Article 7(2) of that regulation, a confirmatory application seeking access to all three documents at issue.
12 By the refusal decision, the Commission confirmed the refusal of access to those documents, pursuant to the first subparagraph of Article 4(3) of Regulation No 1049/2001. The action before the General Court, facts subsequent to the bringing of that action and the order under appeal
13 By application lodged at the Registry of the General Court on 16 October 2020, Validity brought an action for annulment of the refusal decision.
14 While the proceedings in Case T‑640/20 were ongoing, the Commission adopted the decision to grant, by which it replaced the refusal decision, and granted Validity access to the three documents at issue, with the exception of the personal data contained therein.
15 On 30 April 2021, the Commission applied to the General Court for a declaration that there was no longer any need to adjudicate on the action for annulment of the refusal decision.
16 On 20 May 2021, by separate documents lodged at the Registry of the General Court, Validity submitted its observations on that application and modified its application initiating proceedings to take account of the decision to grant. In order to demonstrate a continuing interest in bringing proceedings against the refusal decision, it argued, inter alia, that it was necessary to avoid the risk that, in the future, the Commission would refuse - in breach of Article 4(3) of Regulation No 1049/2001 - to grant access to documents such as the three documents at issue, relying again on a general presumption of confidentiality concerning that type of document or, at the very least, on a vague ground, alleging that such access would seriously affect the climate of mutual trust between the Hungarian authorities and the Commission, and the Commission’s negotiating margins. Validity also raised the risk that the Commission might persist, in disregard of the time limits laid down by that regulation, in a recurring pattern of dilatory tactics and partial disclosures, contrary to the principles of transparency and sound administration.
17 By the order under appeal, the General Court rejected those arguments and held, pursuant to Article 130(2) of its Rules of Procedure, that there was no longer any need to adjudicate on the application for annulment of the refusal decision.
18 It held, in paragraphs 34 to 37 of that order, that the refusal decision, which was based on the first subparagraph of Article 4(3) of Regulation No 1049/2001, did not refer to a general presumption of confidentiality applicable to documents relating to draft calls for proposals co-funded by the European Union, in accordance with Regulation No 1303/2013. According to the General Court, that finding was confirmed by the fact that the Commission, in its initial position of 14 May 2020, had examined specifically and individually each of the documents requested, and refused access only to the three documents at issue, account being taken of the reservations expressed by the Hungarian authorities.
19 In paragraphs 38 to 43 of that order, the General Court noted that, by decision of 15 December 2021, the Commission had granted Validity’s subsequent request dated 30 April 2021, for access to documents relating to the call for proposals and dated after 10 March 2020, without relying, on the basis of Article 4(3) of Regulation No 1049/2001, on any ground relating to the need to protect the climate of trust between the Hungarian authorities and the Commission and the Commission’s negotiating margins, even though those authorities had again expressed reservations regarding the disclosure of the documents of which they were the author. That court thus held that that decision was such as to eliminate the risk of repetition of that ground and that, therefore, the mere fact that, in order to refuse access to the three documents at issue, the Commission had initially relied on that ground did not give rise to the presumption that the Commission would rely on the same ground in relation to a new request seeking to obtain access to similar documents.
20 The General Court thus held, in paragraphs 44 and 45 of the order under appeal, that Validity had not demonstrated a continuing interest in bringing an action for annulment of the refusal decision on the ground that the Commission had relied on a general presumption of confidentiality or on a general ground, which might be repeated in the future, irrespective of the particular circumstances of the adoption of the refusal decision.
21 Furthermore, in order to reject, in paragraphs 48 to 50 of that order, the argument of Validity based on the risk that the Commission would continue, in disregard of the time limits laid down in Regulation No 1049/2001, in dilatory tactics and partial disclosures of documents, contrary to the principles of transparency and sound administration, the General Court held that, since the Commission had, in the five procedures for access to the documents identified by Validity in its application, granted access to the documents requested, none of those procedures made it possible to establish the risk of repetition of an infringement of those principles, irrespective of the circumstances specific to the adoption of the refusal decision.
22 Lastly, the General Court held, in paragraph 51 of that order, that, by adopting the decision to grant, the Commission gave Validity full satisfaction and that Validity had not established that it still had an interest in bringing proceedings for annulment of the refusal decision.
23 As regards Validity’s application for annulment of the decision to grant, the General Court, in paragraphs 55 to 57 of the order under appeal, rejected that application as inadmissible on the ground that that decision did not have the same subject matter as the refusal decision and that, in those circumstances, the amendment of the form of order sought and of the pleas in law was not permitted in that case. Forms of order sought
24 Validity claims that the Court should: - declare the appeal admissible and well-founded; - set aside the order under appeal; - annul both the refusal decision and the decision to grant and order the Commission to pay the costs; or - remit the case to the General Court for a decision on its merits and reserve the costs.
25 The Commission contends that the appeal should be dismissed and Validity ordered to pay the costs. The appeal
26 In support of its appeal, Validity relies on two grounds, seeking to challenge the merits of the order under appeal in so far as, by that order, the General Court dismissed its application for annulment of the refusal decision. The first ground of appeal alleges that the General Court erred in law in holding that there was no risk that the Commission would in future act in breach of Article 4(3) of Regulation No 1049/2001. The second ground of appeal alleges that the General Court erred in law in concluding that there was no risk of repeated infringements of the principles of transparency and good administration and of ‘procedural breaches’ of Regulation No 1049/2001. By contrast, Validity does not put forward any ground or argument in support of its application for annulment of the order under appeal in so far as it dismissed its action for annulment of the decision to grant. F irst ground of appeal First part of the first ground of appeal - Arguments of the parties
27 By the first part of the first ground of appeal, which concerns paragraphs 33 to 37 and paragraphs 43 and 44 of the order under appeal, Validity complains that the General Court erred in law in holding that the refusal decision does not give rise to a risk that, in the future, the Commission would again refuse - in breach of Article 4(3) of Regulation No 1049/2001 - to grant access to documents of the same nature as the three documents at issue. According to Validity, the ground on which that decision is based, alleging that those documents could not be disclosed so as not to affect the ‘climate of mutual trust’ between the Hungarian authorities and the Commission, is unlawful, whether it is regarded as a general presumption of confidentiality or as a mere ground for refusing access to the documents. In those circumstances, Validity retains an interest in bringing an action for annulment of that decision.
28 First, the General Court failed to find that the Commission relied on the vague ground relating to the ‘climate of mutual trust’ as if it were a general presumption of confidentiality, in order to exempt itself from its obligation to examine whether and how access to the three documents at issue would undermine the decision-making process in Hungary.
29 Second, since only the three documents at issue were linked to a decision-making process that was ongoing at the time of the adoption of the refusal decision and could therefore fall within the scope of Article 4(3) of Regulation No 1049/2001, the fact that the Commission only refused access to those documents does not show that a general presumption of confidentiality based on that provision was not applied, since the other documents, access to which was granted, were not linked to an ongoing decision-making process and, therefore, did not fall within the scope of that provision.
30 Third, the General Court thus failed to examine - in breach of Article 4(3) of Regulation No 1049/2001 - whether access to the three documents at issue would concretely, effectively, and seriously undermine the ongoing decision-making process in Hungary. According to Validity, regardless of whether the ground on which the refusal decision, concerning the ‘climate of mutual trust’ with the Hungarian authorities, operated as a de facto general presumption of confidentiality, the Commission infringed that provision by using a vague justification, without examining whether the application of the exception laid down in that provision was merited. That infringement justifies making, in the future, suitable amendments in order to avoid the risk that the unlawfulness vitiating that decision will be repeated and, therefore, demonstrates, in accordance with the judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 48), that there is a continuing interest in seeking the annulment of that decision.
31 The Commission submits that the first part of the first ground of appeal is inadmissible, since the arguments relied on do not relate to questions of law, and, in any event, is unfounded. - Findings of the Court
32 An action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled, which requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (judgment of 20 December 2017, Binca Seafoods v Commission , C‑268/16 P, EU:C:2017:1001, paragraph 44 and the case-law cited). That interest must exist at the stage of lodging the action, failing which the action will be inadmissible, and continues until the final decision, failing which there will be no need to adjudicate (see, to that effect, judgments of 28 May 2013, Abdulrahim v Council and Commission , C‑239/12 P, EU:C:2013:331, paragraph 61, and of 4 September 2018, ClientEarth v Commission , C‑57/16 P, EU:C:2018:660, paragraph 43 and the case-law cited).
33 In certain cases, an applicant may, however, retain an interest in seeking the annulment of a contested act which has ceased to have effect in the course of proceedings and, as the case may be, of the judgment or order of the General Court dismissing the action brought against that act, in order to induce the author of the act to make suitable amendments in the future as a result of that annulment, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated. The continuation of such an interest in bringing proceedings presupposes that that unlawfulness is liable to recur in the future, irrespective of the particular circumstances of the case in question (see, to that effect, judgments of 28 May 2013, Abdulrahim v Council and Commission , C‑239/12 P, EU:C:2013:331, paragraphs 62 and 63; of 4 September 2018, ClientEarth v Commission , C‑57/16 P, EU:C:2018:660, paragraph 48; and of 30 April 2020, Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission , C‑560/18 P, EU:C:2020:330, paragraphs 39 and 40 and the case-law cited).
34 In actions for access to documents, such as that in the present case, the applicant’s interest in bringing proceedings cannot, however, automatically continue simply because, in the future, the institution concerned might interpret a provision applicable in the field concerned in the manner contested by that party (see, to that effect, judgment of 30 April 2020, I zba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission , C‑560/18 P, EU:C:2020:330, paragraph 47).
35 In the present case, as the General Court held in paragraph 34 of the order under appeal, the refusal decision, in so far as it relied on the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001 as regards Validity’s application for access, does not refer to any general presumption of confidentiality applicable to documents originating from a Member State relating to draft calls for proposals co-funded by the European Union in accordance with the provisions of Regulation No 1303/2013, which Validity itself admits in its appeal.
36 Article 4(5) of Regulation No 1049/2001 places the Member States in a position that is different from that of other third parties, by providing that, unlike them, any Member State has the possibility of requesting the institution not to disclose a document originating from that State without its prior agreement (see, to that effect, judgment of 18 December 2007, Sweden v Commission , C‑64/05 P, EU:C:2007:802, paragraph 43). That provision thus gives the Member State concerned the opportunity to participate in the taking of the decision which the institution is required to adopt and establishes a decision-making process for determining whether the exceptions listed in Article 4(1) to (3) of that regulation preclude access to the document in question (see, to that effect, judgment of 18 July 2017, Commission v Breyer , C‑213/15 P, EU:C:2017:563, paragraph 43).
37 It must be stated, in that context, that the documents referred to in paragraph 35 of the present judgment are not among those in respect of which the Court of Justice has recognised the existence of general presumptions of confidentiality, namely, first, the documents in an administrative file relating to a procedure for reviewing State aid; second, the submissions lodged in proceedings before the courts of the European Union, for as long as those proceedings remain pending; third, the documents exchanged between the Commission and notifying parties or third parties in the course of merger control proceedings; fourth, the documents relating to an infringement procedure during its pre-litigation stage, including the documents exchanged between the Commission and the Member State concerned during an EU Pilot procedure; and fifth, the documents relating to a proceeding under Article 101 TFEU (judgment of 4 September 2018, ClientEarth v Commission , C‑57/16 P, EU:C:2018:660, paragraph 81 and the case-law cited).
38 In addition, in paragraphs 35 to 37 of the order under appeal, the General Court carried out a factual assessment in order to ascertain whether the Commission had examined specifically and individually each of the documents covered by the application for access, before rejecting that application on the ground that such access would be liable to damage the ‘climate of mutual trust’ with the Hungarian authorities and to limit the negotiating margins with the Commission. That assessment cannot be subject to review by the Court of Justice in the context of an appeal, in the absence of any allegation, by Validity, of a substantive inaccuracy of the findings of fact made by the General Court or a distortion of the evidence adduced before it (see, to that effect, judgment of 8 June 2023, Severstal and NLMK v Commission , C‑747/21 P and C‑748/21 P, EU:C:2023:459, paragraph 46 and the case-law cited).
39 As noted in paragraph 33 of the present judgment, for an interest in bringing proceedings to continue to exist, the applicant must be able to demonstrate that the alleged unlawfulness vitiates the contested act and that that unlawfulness is liable to recur in the future, irrespective of the particular circumstances of the case in question.
40 In paragraphs 38 to 41 of the order under appeal, the General Court, after a factual assessment taking into account the decision of 15 December 2021 by which the Commission disclosed the documents subsequently requested by Validity, ruled out any risk of repetition of the ground relating to the need to protect the climate of trust between the Hungarian authorities and the Commission and the Commission’s negotiating margins.
41 Furthermore, contrary to what Validity claims, the circumstances of the present case are different from those which gave rise to the judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660), in which the Court of Justice recognised that the applicant retained an interest in the annulment of the decisions refusing access to the documents which it had requested and in the setting aside of the judgment of the General Court which held that there was no longer any need to adjudicate on the application for annulment of those decisions. In the case which gave rise to that judgment, the application for access concerned documents relating to a legislative process in respect of which ClientEarth intended to exert influence, with the result that the Court of Justice recognised that there was a continuing interest in bringing proceedings, despite the subsequent disclosure of the documents requested, on the ground that the appeal sought to have set aside a judgment of the General Court which had interpreted, for the first time, the first subparagraph of Article 4(3) of Regulation No 1049/2001 as laying down a general presumption of confidentiality applicable to a certain category of documents, an interpretation which was challenged in that appeal.
42 As the General Court held in paragraphs 34 and 37 of the order under appeal, the statement of reasons for the decision to grant does not refer to a general presumption of confidentiality, on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001, applicable to documents relating to draft calls for proposals co-funded by the European Union in accordance with the provisions of Regulation No 1303/2013.
43 It follows from the foregoing that, in accordance with the case-law referred to in paragraphs 33 and 34 of the present judgment, the General Court was fully entitled to hold that Validity’s arguments were not capable of demonstrating that, despite the adoption of the decision to grant, there was still an interest in bringing proceedings against the refusal decision, irrespective of the particular circumstances of the present case.
44 Accordingly, the first part of the first ground of appeal must be rejected as being in part unfounded and in part inadmissible. Second part of the first ground of appeal - Arguments of the parties
45 By the second part of the first ground of appeal, which relates to paragraphs 38 to 43 of the order under appeal, Validity criticises the General Court for having, on the basis of the Commission’s decision of 15 December 2021, referred to in paragraph 19 of the present judgment, ruled out the risk that, in the future, that institution might rely - in breach of Article 4(3) of Regulation No 1049/2001 - on a general presumption of confidentiality or on a vague ground for refusal, such as the objective of not affecting either the ‘climate of mutual trust’ between the Hungarian authorities and the Commission, or the Commission’s negotiating margins.
46 According to Validity, the General Court erred in law in its assessment of the risk of repetition of a breach of Article 4(3) of Regulation No 1049/2001 by holding that, for that purpose, only a confirmatory decision, under Article 8 of that regulation, is relevant. The General Court did not take account of the various stages of the procedure for access to documents and of the practice of taking decisions within the Commission, which forms part of a ‘recurrent pattern of delays, missed deadlines, and reversal of decisions’. The risk of invoking ‘vague grounds’ to justify the refusal of access to documents persists at the stage of the processing, by the various Commission directorates, of the initial applications, pursuant to Article 7 of that regulation. The increased potential that the Secretariat-General of the Commission might adopt, under Article 8(1) of that regulation, a lawful confirmatory decision does not eliminate the risk of repetition of such ‘vague grounds’, with the result that the ‘suitable amendments’, within the meaning of the judgment of 30 April 2020, Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission (C‑560/18 P, EU:C:2020:330), made by that institution, remain insufficient.
47 Validity claims that, as long as the Commission’s different directorates do not function ‘as one’, it will be forced to submit confirmatory applications in order to ensure respect for its right of access to documents, which is a ‘burdensome process, which requires extensive time and resource investments’, liable to undermine its function as a non-governmental organisation. The General Court therefore, in paragraph 42 of the order under appeal, incorrectly assessed the vulnerability of Validity in the face of a future infringement of Article 4(3) of Regulation No 1049/2001, having regard to the requests for access which it would be led to submit to the Commission in circumstances comparable to those of the present case, and which that institution could initially reject on the basis of ‘vague grounds’, such as that relied on in the refusal decision.
48 The Commission contends that the second part of the first ground of appeal is inadmissible and, in any event, unfounded. - Findings of the Court
49 Articles 7 and 8 of Regulation No 1049/2001 provide, as stated in recital 13 thereof, for a two-stage procedure for access to documents. The reply to an initial application for access to documents, under Article 7(1) of that regulation, is merely an initial statement of position, which in principle cannot be subject to an appeal (see, to that effect, judgment of 14 July 2016, Sea Handling v Commission , C‑271/15 P, EU:C:2016:557, paragraph 76 and the case-law cited). Such a reply confers on the applicant the right, provided for in Article 7(2) of that regulation, to repeat an application for access notwithstanding a first reasoned refusal and allows the EU institution concerned to reconsider its initial position before taking a final refusal decision, which could be the subject of an action before the Courts of the European Union and, where appropriate, to remedy any illegalities affecting an initial refusal (see, to that effect, judgment of 26 January 2010, Internationaler Hilfsfonds v Commission , C‑362/08 P, EU:C:2010:40, paragraph 54).
50 It follows that, in the present case, contrary to what Validity claims, the assessment of the existence of a risk that the unlawfulness allegedly vitiating the refusal decision will recur in the future cannot be carried out solely with regard to the initial decisions adopted under Article 7 of that regulation, without ignoring the fact that the procedure for access to documents comprises two stages, as is apparent from Articles 7 and 8 of that regulation, read in the light of recital 13 thereof.
51 In that context, the General Court noted, in paragraphs 39 to 41 of the order under appeal, that the Commission, by its decision of 15 December 2021, referred to in paragraph 19 of the present judgment, granted Validity access to all the documents covered by its subsequent application of 30 April 2021, notwithstanding the objections of the Hungarian authorities. The General Court was thus entitled to hold, without making an error in law, that that decision was such as to rule out the risk that the Commission might put forward, in the future, a ground based on the need to protect the climate of trust between the Hungarian authorities and the Commission, as well as the Commission’s discretion, irrespective of the particular circumstances which led to the adoption of the refusal decision.
52 As regards the argument concerning paragraph 42 of the order under appeal, according to which the General Court incorrectly assessed the vulnerability of Validity to a future infringement of Article 4(3) of Regulation No 1049/2001, it must be held that the number of applications for access to documents which, in the future, Validity might be required to submit to the Commission in circumstances comparable to those of the present case is not sufficient to demonstrate either that the Commission could reject those requests on the same - allegedly vague - basis as that relied on in the refusal decision, or that those refusals would be liable to jeopardise Validity’s activity as a non-governmental organisation.
53 In the light of the foregoing, the second part of the first ground of appeal must be rejected as unfounded and, accordingly, the first ground must be rejected in its entirety. S econd ground of appeal First part of the second ground of appeal - Arguments of the parties
54 By the first part of the second ground of appeal, which relates to paragraphs 46 to 49 of the order under appeal, Validity claims that the General Court failed to assess whether there was a risk that ‘procedural breaches committed by the Commission in past procedures’ would recur and thus erred in law, in so far as the refusal decision forms part of a recurrent pattern of dilatory tactics and partial disclosures by the Commission, contrary to the principles of transparency and sound administration. The fact that the Commission subsequently granted access to the three documents in question is irrelevant, since ‘[Validity’s] rights to transparency and good administration have already been breached by the procedure and an ultimate disclosure cannot remediate that.’
55 The Commission contends that the first part of the second ground of appeal is unfounded. - Findings of the Court
56 As regards the processing of initial applications, within the meaning of Article 7 of Regulation No 1049/2001, it follows from paragraph 4 of that article that failure by the EU institution concerned to reply within the period of 15 working days from registration of the application, provided for in paragraph 1 of that article, which may be extended by 15 working days, exceptionally, in accordance with paragraph 3 of that same article, entitles the applicant to make a confirmatory application. That regulation does not have any other legal consequences in the event of failure to comply with the time limits laid down in Article 7 thereof (see, to that effect, judgment of 14 July 2016, Sea Handling v Commission , C‑271/15 P, EU:C:2016:557, paragraphs 77 and 78).
57 As regards the processing of confirmatory applications, within the meaning of Article 8 of Regulation No 1049/2001, failure to reply within the period of 15 working days from registration of the application, provided for in paragraph 1 of that article, which may be extended by 15 working days, exceptionally, in accordance with paragraph 2 of that article, must be regarded, under paragraph 3 of that article, as an implied decision refusing the application for access to the documents concerned. That mechanism is intended to mitigate the risk of inaction on the part of the EU institution concerned following an application for access to documents addressed to it (see, to that effect, judgment of 14 July 2016, Sea Handling v Commission , C‑271/15 P, EU:C:2016:557, paragraphs 83 and 84).
58 Thus, in order to challenge the failure to comply with the time limits laid down in Article 8 of Regulation No 1049/2001, the applicant may, under paragraph 3 of that article, institute proceedings not only against an implied rejection decision, on the basis of Article 263 TFEU, but also bring a complaint before the Ombudsman under Article 228 TFEU. In any event, the EU institution concerned remains under an obligation to provide - even late - a reasoned reply to the application for access (see, to that effect, judgment of 14 July 2016, Sea Handling v Commission , C‑271/15 P, EU:C:2016:557, paragraphs 85 to 87).
59 In the present case, the action for annulment brought by Validity before the General Court seeks the annulment of the refusal decision, by which the Commission expressly confirmed the refusal to grant access to the three documents at issue. Validity did not put forward, in support of that action, grounds alleging a failure to comply with the time limits laid down in Articles 7 and 8 of Regulation No 1049/2001.
60 In order to assess the risk that the Commission would repeatedly fail to comply with the time limits laid down in Regulation No 1049/2001 and, therefore, with the principles of transparency and sound administration - non-compliance by which the refusal decision is allegedly vitiated - it is the procedure for access to the documents which gave rise to the present case that is relevant and not, contrary to what Validity claims, any ‘procedural breaches committed by the Commission in past procedures’.
61 Moreover, contrary to what Validity claims, even assuming that it were proven that there had been a failure to comply with those time limits, the refusal decision does not establish that there were recurrent and systematic failures to comply with those time limits by the Commission. Therefore, Validity cannot claim, relying on the case-law referred to in paragraph 33 of the present judgment, that the refusal decision constitutes a precedent involving the risk that, in the future, the Commission may refuse access to documents in breach of the time limits laid down in Articles 7 and 8 of Regulation No 1049/2001, irrespective of the particular circumstances of the present case, and thus justify a continuing interest in bringing proceedings for annulment of the refusal decision.
62 In any event, Validity’s argument that the fact that the Commission subsequently granted access to the three documents at issue is irrelevant, manifestly disregards the two-stage procedure for access to documents, as laid down in Articles 7 and 8 of Regulation No 1049/2001, read in the light of recital 13 of that regulation, and set out in paragraph 49 of the present judgment. The adoption of a confirmatory decision under Article 8(1) of that regulation is intended to enable the EU institution concerned, on application made under Article 7(2) of that regulation, to re-examine its initial position and to grant, where appropriate, access to the documents requested, thereby remedying any illegalities vitiating an initial refusal (see, to that effect, judgment of 26 January 2010, Internationaler Hilfsfonds v Commission , C‑362/08 P, EU:C:2010:40, paragraph 54).
63 The first part of the second ground of appeal is therefore unfounded. Second part of the second ground of appeal - Arguments of the parties
64 By the second part of the second ground of appeal, Validity criticises the General Court for having, in paragraph 48 of the order under appeal, made a ‘manifest error of assessment of the facts’, by holding that there was no risk of repetition of a failure to comply with the time limits laid down in Regulation No 1049/2001 and, therefore, with the principles of transparency and sound administration, on the ground that the Commission had granted Validity’s requests in the procedures for access to the documents identified in its application at first instance, including that which gave rise to the present case.
65 According to Validity, ‘the key to this assessment is not the eventual disclosure, but the procedural breaches’, which are recurrent and systematic, of the time limits laid down in Articles 7 and 8 of Regulation No 1049/2001, the existence of which is revealed by a plain reading of the evidence concerning those procedures. That evidence shows, in particular, that the Commission, in breach of Article 7(3), did not justify the extension of the time limit laid down in Article 7(1), or failed to inform the applicant accordingly and, when the time limits for replying were extended, the Commission did not respect the extended time limits, as in the procedure giving rise to the decision of 15 December 2021. In those circumstances, the General Court should have found that there was a clear risk that the failure to comply with the time limits laid down in that regulation and with the principles of transparency and sound administration would be repeated in future procedures.
66 The Commission contends that the second part of the second ground of appeal must be rejected as unfounded. - Findings of the Court
67 By its arguments, Validity disputes, in essence, the General Court’s finding, in paragraph 48 of the order under appeal, that, on the basis of Validity’s own written submissions, in the procedures for access to the documents identified in its application at first instance, including that giving rise to the present case, the Commission systematically granted the requests for access to the documents which it had submitted.
68 In accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law and the General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. That assessment does not therefore, save where the facts or evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, to that effect, judgment of 25 January 2022, Commission v European Food and Others , C‑638/19 P, EU:C:2022:50, paragraph 71 and the case-law cited).
69 Where an appellant alleges such distortion, it must, under those provisions and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion. In addition, the alleged distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, to that effect, judgment of 8 June 2023, Severstal and NLMK v Commission , C‑747/21 P and C‑748/21 P, EU:C:2023:459, paragraph 47 and the case-law cited).
70 In the present case, Validity neither claims nor demonstrates that it is obvious from the documents in the file that the General Court made substantially incorrect findings of fact as regards the procedure for access to the documents which gave rise to the present case, which, as noted in paragraph 60 of the present judgment, is the only one which must be taken into account in that context. Its line of argument is therefore inadmissible.
71 The second ground of appeal must therefore be rejected in its entirety as being in part unfounded and in part inadmissible. The claims concerning the decision to grant
72 In its appeal, Validity sets out only one head of claim seeking annulment of the decision to grant. It does not raise any specific ground of appeal or argument relating to paragraphs 52 to 57 of the order under appeal, in which the General Court assessed Validity’s request to modify the application at first instance, in order to take account of the decision to grant, and dismissed as inadmissible the claim for annulment of that decision on the ground that it did not have the same subject matter as the refusal decision.
73 It follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment or order under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned may be inadmissible (see, to that effect, judgment of 23 November 2021, Council v Hamas , C‑833/19 P, EU:C:2021:950, paragraph 50 and the case-law cited).
74 In its appeal, the appellant merely seeks the annulment of the decision to grant, without, however, raising the slightest legal argument to justify granting that request. Accordingly, the appeal is manifestly inadmissible in so far as, by that appeal, the appellant seeks the annulment of that decision.
75 In the light of all of the foregoing considerations, the appeal must be dismissed in its entirety. Costs
76 Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. According to Article 138(1) of those Rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
77 Since the Commission has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs of the appeal. On those grounds, the Court (Eighth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Validity Foundation - Mental Disability Advocacy Centre to pay the costs. Piçarra Jääskinen Gavalec Delivered in open court in Luxembourg on 29 July 2024. A. Calot Escobar N. Piçarra Registrar President of the Chamber * Language of the case: English.