ORDER OF THE GENERAL COURT (Seventh Chamber)
14 January 2014 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Opinion of the Council’s Legal Service – Refusal of access – Disclosure after the action was brought – Action becoming devoid of purpose – No legal interest in bringing proceedings – No need to adjudicate)
In Case T‑303/13,
Samuli Miettinen, residing in Espoo (Finland), represented by O. Brouwer, E. Raedts, lawyers, and A. Villette, Solicitor,
applicant,
v
Council of the European Union, represented by K. Pellinghelli and É. Sitbon, acting as Agents,
defendant,
APPLICATION for annulment of the Council’s decision of 25 March 2013 refusing to grant the applicant access to the full text of the opinion of the Council’s Legal Service, reference 15309/12,
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude, President, I. Wiszniewska-Białecka (Rapporteur) and I. Ulloa Rubio, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By letter of 18 January 2013, the applicant, Mr Samuli Miettinen, submitted to the Council of the European Union a request, based on 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), for access to the opinion of the Council’s Legal Service, reference 15309/12 (‘the requested document’). That opinion concerned the appropriate legal basis for a proposal for a directive of the European Parliament and of the Council on the fight against fraud to the European Union’s financial interests by means of criminal law.
2 By letter of 21 February 2013, the Council refused to grant the applicant access to the full text of the requested document, on the basis of Article 4(2) of Regulation No 1049/2001, relating to the protection of legal advice, and the first subparagraph of Article 4(3) of that regulation, relating to the protection of the decision-making process of the institutions of the European Union.
3 By letter of 25 February 2013 to the Council, the applicant reiterated his request for full access to the requested document and asked the Council to reconsider its position and to specify which parts of the undisclosed sections of the requested document were covered by which of the grounds for refusal of access mentioned in its letter to him of 21 February 2013.
4 By letter of 25 March 2013, reference 04/c/01/13 (‘the contested decision’), the Council again refused to grant the applicant access to the full text of the requested document, on the basis of the same provisions. It maintained that the document contained legal advice on a novel issue concerning political choices for ensuring the protection of the financial interests of the European Union and compliance with fundamental rights. Consequently, the disclosure of the requested document in its entirety would give rise to a real risk that those political choices would be scrutinised in subsequent litigation and might prevent a genuine debate on the issue concerned and disrupt the course of the decision‑making process in train. The Council added that no additional parts of the requested document could be disclosed on account of the fact that it constituted a homogeneous text articulated around a single issue, which set out the legal arguments and analyses from which a conclusion was drawn.
5 By letter to the Council of 5 April 2013, the applicant submitted a second request for access to the requested document in its entirety.
6 By letter to the applicant of 23 April 2013, the Council confirmed its refusal to grant access to the full text of the document, as there were no new elements that would warrant the adoption of a decision different from the contested decision.
Procedure and forms of order sought
7 By application lodged at the Court Registry on 4 June 2013, the applicant brought the present action.
8 By documents lodged at the Court Registry on 6 and 9 September 2013 respectively, the Kingdom of Sweden and the Republic of Finland applied for leave to intervene in support of the form of order sought by the applicant.
9 The applicant claims that the Court should:
– annul the contested decision;
– order the Council to pay the costs.
10 By document lodged at the Court Registry on 23 September 2013, the Council applied for a declaration that there is no need to adjudicate pursuant to Article 113 of the Rules of Procedure of the General Court, because of the adoption on that date of a decision authorising the disclosure of the requested document in its entirety. The applicant lodged his observations on that application on 30 October 2013.
11 In its application for a declaration that there is no need to adjudicate, the Council claims that the Court should:
– declare that the action has become devoid of purpose and that there is no need to adjudicate on it;
– order each party to bear its own costs.
12 In his observations on the application for a declaration that there is no need to adjudicate, the applicant contends that the Court should:
– declare that there is a still a need to adjudicate and set a time-limit for the lodging of the Council’s defence;
– reserve the decision as to costs.
Law
13 Under 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 or declare that the action has become devoid of purpose and that there is no need to adjudicate on it.
14 In the present case, the Court considers it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.
15 In support of its application for a declaration that there is no need to adjudicate, the Council submits that the action has become devoid of purpose because of the disclosure of the requested document, so that there is no need to adjudicate on the action.
16 According to settled case-law, the subject-matter of the dispute, as determined by the application initiating the proceedings, must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42, and Case T‑29/08 LPN v Commission [2011] ECR II‑6021, paragraph 56).
17 In the present case, by decision of 23 September 2013, the Council decided to disclose to the public the requested document in its entirety.
18 By allowing the applicant access to that document, that decision had the effect of satisfying Mr Miettinen’s claim in full.
19 In that regard, it should be noted that Mr Miettinen has obtained the only result that his action could have secured for him. The annulment of the contested decision, in so far as it refuses the applicant access to the requested document, would have no additional effect in relation to the disclosure of that document in its entirety.
20 The applicant’s argument, put forward in his observations on the application for a declaration that there is no need to adjudicate, that, in the light of the judgment in Wunenberger v Commission, cited in paragraph 16 above, he retains an interest in seeking the annulment of the contested decision despite the disclosure of the requested document in order to prevent the recurrence in the future of the unlawfulness allegedly vitiating that decision, cannot be accepted.
21 It is true that it follows from the case-law of the Court that an applicant may retain an interest in seeking the annulment of an act of an institution of the European Union in order to prevent its alleged unlawfulness recurring in the future (see Wunenberger v Commission, cited in paragraph 16 above, paragraph 50 and the case-law cited).
22 However, as is made clear in that same line of case-law, that interest in bringing proceedings can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case which gave rise to the action brought by the applicant (Wunenburger v Commission, cited in paragraph 16 above, paragraph 52).
23 In the present case, the grounds given in the contested decision for the Council’s refusal to grant the applicant access to the requested document concern, as is apparent from paragraph 4 above, the nature and content of that document.
24 Since such grounds, the merits of which are disputed by the applicant, are closely linked to the circumstances of the present case, it must be concluded that it has not been established that the alleged unlawfulness is liable to recur independently of those circumstances.
25 It follows from the foregoing that the action has become devoid of purpose and that there is no need to adjudicate on it (see, to that effect, order in Case C‑123/92 Lezzi Pietro v Commission [1993] ECR I‑809, paragraph 10, and LPN v Commission, cited in paragraph 16 above, paragraph 57).
Costs
26 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court.
27 The Court considers that it will be a fair reflection of the circumstances of the case to decide that the Council is to bear, in addition to its own costs, those incurred by the applicant in the present proceedings.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. There is no need to adjudicate on the action.
2. The Council of the European Union shall pay the costs.
3. There is no need to adjudicate on the applications for leave to intervene submitted by the Kingdom of Sweden and the Republic of Finland.
Luxembourg, 14 January 2014.
E. Coulon | | M. van der Woude |