ORDER OF THE GENERAL COURT (Fifth Chamber)
25 January 2012 (*)
(Actions for annulment – Access to documents – Regulation (EC) No 1049/2001– Documents relating to a study of the costs and benefits to merchants of accepting different payment methods – Documents drawn up by a third party – Implied refusal of access – Interest in bringing proceedings – Express decision adopted after the bringing of the action – No need to adjudicate)
In Case T‑330/11,
MasterCard, Inc., established in Wilmington, Delaware (United States),
MasterCard International, Inc., established in Wilmington,
MasterCard Europe, established in Waterloo (Belgium),
represented by B. Amory, V. Brophy and S. McInnes, lawyers,
applicants,
v
European Commission, represented by F. Clotuche-Duvieusart and V. Bottka, acting as Agents,
defendant,
ACTION for annulment of the implied decision of the Commission to refuse the applicants access to certain documents drawn up by a third party relating to a study of the ‘costs and benefits to merchants of accepting different payment methods’,
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas (Rapporteur) and K. O’Higgins, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts of the dispute
1 By email of 17 December 2010, the applicants MasterCard Inc., MasterCard International Inc. and MasterCard Europe requested the Directorate-General (DG) Competition of the European Commission, on the basis 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), to grant them access to a number of documents said to have been supplied to the Commission by EIM Business and Policy Research (‘EIM’) in connection with a study called for in 2008 on the ‘costs and benefits to merchants of accepting different payment methods’.
2 The request for access related more specifically to the following documents:
– any documents, as defined in Regulation No 1049/2001, if they exist and are in the Commission’s possession, that are listed in section 4.1 (‘Deliverables’) of the specifications to invitation to tender COMP/2008/D1/020, or at least non-confidential versions of those documents;
– the EIM report on the results of the first test (the pilot study), or at least a non-confidential version of that document;
– the EIM final advice on the overall methodology of the study, or at least a non-confidential version of that document;
– any other documents, as defined in Regulation No 1049/2001, provided by EIM to the Commission following the pilot study, or at least non‑confidential versions of those documents.
3 By letter of 18 January 2011, DG Competition refused access to the documents provided by EIM to the Commission (‘the EIM documents’), in accordance with the first indent of Article 4(3) of Regulation No 1049/2001.
4 On 7 February 2011 the applicants made a confirmatory application to the Secretariat-General of the Commission, in accordance with Article 7(2) of Regulation No 1049/2001, asking the Commission to reconsider its position.
5 By email of 8 February 2011, the Secretariat-General of the Commission acknowledged receipt of the applicants’ confirmatory application and stated that they would receive a reply within 15 working days.
6 On 21 February 2011 the Secretariat-General of the Commission asked the applicants to clarify their application and to state whether they wished the EIM documents to be made public.
7 On 23 February 2011 the applicants confirmed that their application was for the public disclosure of the EIM documents, and sought confirmation of the date by which they would receive a reply to their confirmatory application.
8 On 3 March 2011 the Secretariat-General of the Commission stated that it had started to treat the application as a confirmatory application as from 24 February 2011, in accordance with the third indent of Article 2 of the annex to Commission Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure (OJ 2001 L 345, p. 94).
9 The Secretariat-General of the Commission consequently fixed at 16 March 2011 the deadline for dealing with the application. By letter of 7 March 2011, the applicants contested the Secretariat-General’s interpretation of the time-limit for replying.
10 On 14 March 2011 the Secretariat-General of the Commission reaffirmed its view that the period of 15 working days had started to run only from 24 February 2011, and added that in view of the sensitivity of the issue it might not be in a position to provide a final reply by 16 March 2011. It therefore extended the period by 15 working days in accordance with Article 8(2) of Regulation No 1049/2001.
11 By letter of 15 March 2011, the applicants stated that they still did not accept the interpretation by the Secretariat-General of the Commission of the period for assessing their confirmatory application, and that they challenged the ground put forward for extending that period.
12 On 7 April 2011 the Secretariat-General of the Commission informed the applicants that the extended period for replying had expired on 6 April 2011 but it was still unable to provide a final reply within that period. It stated, however, that a draft decision was in the course of being approved, and that it hoped to send the applicants a final version of the decision shortly.
13 The applicants therefore considered that the failure to reply within the extended period constituted an implied refusal of their confirmatory application for access to the documents (‘the implied decision’).
14 On 12 July 2011 the Secretariat-General of the Commission adopted a decision confirming its refusal to grant the applicants access to the EIM documents (‘the express decision’). The express decision was sent to the applicants by email on that date.
Procedure and forms of order sought by the parties
15 By application lodged at the Registry of the Court on 15 June 2011, the applicants brought the present action.
16 The applicants claim that the Court should:
– declare the action admissible;
– annul the implied decision;
– declare that the Commission’s interpretation of Article 8 of Regulation No 1049/2001 is unfounded in law;
– order the Commission to pay the costs.
17 By separate document lodged at the Registry of the Court on 29 July 2011, the Commission applied for a declaration that there was no need to adjudicate, under Article 113 of the Rules of Procedure of the Court, in view of its adoption of the express decision. The applicants filed their observations on that application on 20 September 2011.
18 The Commission contends that the Court should:
– dismiss the action against the implied decision as devoid of purpose;
– order the applicants to pay the costs.
19 In their observations on the application for a decision that there is no need to adjudicate, the applicants claim that the Court should:
– rule that the action has not become devoid of purpose and that there is therefore a need for the Court to adjudicate on it;
– order the Commission to pay the costs.
Law
20 In accordance with Article 113 of the Rules of Procedure, the Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action. In the present case, the Court considers that it has obtained sufficient information from the documents and explanations provided by the parties during the written procedure, so that there is no need to open the oral procedure.
21 The applicants rightly consider that an implied decision was taken, in accordance with Article 8(3) of Regulation No 1049/2001, on the expiry of the period for replying to their confirmatory application lodged with the Commission on 8 February 2011, the date on which it was received by the institution. The Commission thus had 15 working days, pursuant to Article 8(1) of Regulation No 1049/2001, in which to allow or refuse access to the EIM documents.
22 The Commission took that initial period as running from 24 February, the date on which they received clarification as to the purpose of the applicants’ confirmatory application, namely whether or not they sought public disclosure of the EIM documents, pursuant to the third indent of Article 2 of the annex to the Commission’s Rules of Procedure.
23 The Commission also made use of the possibility available to it under Article 8(2) of Regulation No 1049/2001 of extending the period for replying by 15 working days.
24 Without it being necessary to rule on whether the Commission could count the initial period for replying to the confirmatory application as running from the date on which it received the clarification requested as regards the application, pursuant to the third indent of Article 2 of the annex to its Rules of Procedure, it must be considered that the claim for annulment of the implied decision is inadmissible in any event (see, by analogy, order of 17 June 2010 in Case T‑359/09 Jurašinović v Council, not published in the ECR, paragraph 33).
25 It must be emphasised that, according to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure (order in Jurašinović v Council, paragraph 35).
26 An applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible (order in Jurašinović v Council, paragraph 36).
27 The Commission adopted its express decision on 12 July 2011. That decision was thus adopted after the date on which the present action was brought. The applicants therefore had an interest in bringing proceedings on the date on which the action was brought, and the action was admissible.
28 However, the interest in bringing proceedings must continue until delivery of the Court’s decision, failing which there is no need to adjudicate, which presupposes that the action must be capable, if successful, of procuring a benefit for the party bringing it (order in Jurašinović v Council, paragraph 38).
29 If the applicant’s interest in bringing proceedings disappears in the course of the proceedings, a decision of the Court on the merits cannot bring him any benefit (order in Jurašinović v Council, paragraph 39).
30 In the present case, it must be considered that there is no longer any need to adjudicate on the action in so far as it is directed against the implied decision, inasmuch as the applicants no longer have an interest in bringing proceedings against that decision because of the adoption of the express decision, the annulment of which they are seeking in Case T‑516/11 MasterCard and Others v Commission, now pending before the Court. By adopting the express decision the Commission de facto withdrew the implied decision (see, by analogy, order in Jurašinović v Council, paragraph 40).
31 The applicants’ argument that the express decision has no legal basis and should be regarded as non-existent cannot succeed. It must be recalled that a finding that a measure is non-existent should be reserved for measures with particularly serious and manifest defects. The gravity of the consequences attaching to a finding that a measure of an institution is non-existent requires that, for reasons of legal certainty, such a finding should be reserved for altogether extreme situations (see Joined Cases T‑494/08 to T‑500/08 and T‑509/08 Ryanair v Commission [2010] ECR II‑0000, paragraph 49 and the case-law cited).
32 In the present case, the mere fact that the express decision was adopted after the expiry of the period laid down in Article 8 of Regulation No 1049/2001 does not have the effect of depriving the Commission of the power to adopt a decision (see Ryanair v Commission, paragraph 50 and the case-law cited).
33 The applicants’ argument that the Commission had lost the power validly to adopt a written reply to the confirmatory application must also be rejected.
34 There is no legal principle that deprives the administration of the power to reply to an application, even outside the time-limits laid down for that purpose. The mechanism of an implied refusal decision was established in order to counter the risk that the administration would choose not to reply to an application for access to documents and escape review by the courts, not in order to make every belated decision unlawful. On the contrary, the administration is required, in principle, to provide, even belatedly, a reasoned reply to every application by a citizen. That approach is consistent with the function of the mechanism of the implied refusal decision, which is to enable citizens to challenge inaction on the part of the administration with a view to obtaining a reasoned reply (see Joined Cases T‑355/04 and T‑446/04 Co-Frutta v Commission [2010] ECR II‑1, paragraph 59).
35 The applicants’ argument that the Commission could have drawn inspiration from their applications in drafting its decision, which is moreover not supported by any evidence, cannot call that conclusion into question.
36 The applicants further submit that allowing the Commission to adopt an express decision after the expiry of the period for replying would encourage it to disregard the statutory deadline laid down in Regulation No 1049/2001, would run counter to the principle of legal certainty, and would require applicants to bring two actions for annulment before the Court.
37 Those arguments cannot be accepted. First, it must be recalled that the consideration of actions brought against implied decisions cannot be justified by the objective of preventing the alleged unlawfulness from recurring (Ryanair v Commission, paragraph 46).
38 Secondly, that interpretation does not affect the objective pursued by Article 296 FEU of protecting the rights of citizens and does not allow the Commission to disregard the mandatory time-limits laid down by Regulation No 1049/2001. Compensation for any loss occasioned by failure to comply with the time-limits for replying can be sought before the Court in an action for damages (Co-Frutta v Commission, paragraph 60).
39 There is therefore no need to adjudicate on the action.
Costs
40 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are in the discretion of the Court.
41 It was the Commission’s failure to reply within the prescribed period to the applicants’ confirmatory application that led them to bring the present action. The Commission’s conduct consequently justifies its being ordered to bear its own costs and pay those incurred by the applicants.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. There is no need to adjudicate on the action.
2. The European Commission is ordered to pay the costs.
Luxembourg, 25 January 2012.