Language of document : ECLI:EU:T:2011:646

ORDER OF THE GENERAL COURT (Fifth Chamber)

9 November 2011(*)

(Access to documents of the institutions – Regulation (EC) No 1049/2001 – Implied refusal of access – Interest in bringing proceedings – Express decision adopted after the action was brought – Refusal to amend the form of order sought – No need to adjudicate)

In Case T‑120/10,

ClientEarth, established in London (United Kingdom),

European Federation for Transport and Environment (T&E), established in Brussels (Belgium),

European Environmental Bureau (EEB), established in Brussels (Belgium),

BirdLife International, established in Brussels (Belgium),

represented by S. Hockman QC, and by P. Kirch, lawyer

applicants,

v

European Commission, represented by K. Herrmann and C. ten Dam, acting as Agents,

defendant,

APPLICATION for annulment of the Commission decision of 9 February 2010 refusing access to certain documents relating to biofuels modelling,

THE GENERAL COURT (Fifth Chamber),

composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

 Background to the dispute

1        ClientEarth is a charitable association, the mission of which is inter alia to promote the enhancement, conservation and protection of the environment as well as to provide information on all matters relating to the law, practice and administration of justice in connection with the environment.

2        The European Federation for Transport and Environment (T&E) is a non-profit-making organisation, the mission of which is to promote a transport policy based on science and the principles of sustainable development.

3        The European Environmental Bureau (EEB) is a federation of approximately 140 environmental organisations, the aim of which is to protect and improve the environment in Europe and to enable the citizens of Europe to play a part in achieving that goal.

4        BirdLife International is a charitable association of organisations, the mission of which is to strive to conserve birds, their habitats and global biodiversity, with a view to achieving sustainability in the use of natural resources.

5        By letter of 15 October 2009, the European Federation for Transport and Environment (T&E) applied to the Directorate-General for Agriculture and Rural Development of the European Commission (DG AGRI) for access to all documentation relating to the modelling of the impacts of indirect land-use change caused by increased biofuels production performed for the Commission by the Institute for prospective Technological Studies of the Joint Research Centre (JRC) – and, if applicable, by other consultants – as of 1 January 2009. Those documents were requested under 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).

6        That application was registered by the Commission on 15 October 2009.

7        By letter of 3 November 2009, DG AGRI informed the European Federation for Transport and Environment (T&E) that it was postponing the deadline by which it had to reply by 15 days.

8        By letter of 27 November 2009, DG AGRI granted access to some of the documents requested, but refused to send others on the ground that they were covered by the exception provided for in Article 4(3) of Regulation No 1049/2001.

9        By letter of 17 December 2009, the European Federation for Transport and Environment (T&E) – joined by ClientEarth, the European Environmental Bureau (EEB) and BirdLife International – submitted a confirmatory application, within the meaning of Article 7(2) of Regulation No 1049/2001, to the Secretariat-General of the Commission.

10      The confirmatory application was registered by the Secretariat-General of the Commission on 18 December 2009.

11      By letter of 19 January 2010, the Secretariat-General of the Commission informed the applicants that the deadline for replying to their confirmatory application was being postponed by 15 days in accordance with Article 8(2) of Regulation No 1049/2001.

12      By letter of 8 February 2010, the Secretariat-General of the Commission informed the applicants that it would not be able to take a final decision on the application for access to the documents by the required deadline – 9 February 2010 – in so far as the handling of the application involved the assessment of a great number of documents from various Directorates-General and from third parties. The Secretariat-General of the Commission also suggested to the applicants that an attempt be made to find a fair solution, in accordance with Article 6(3) of Regulation No 1049/2001, and to that end it proposed giving them a partial reply after examining one set of documents and then a final reply after examining the remaining documents.

13      By letter of 8 February 2010, the applicants replied to the Commission, drawing up a list of documents which they regarded as having priority and wished to have disclosed by 9 February 2010. They added that they were not thereby waiving their right to institute proceedings, in accordance with Article 8(3) of Regulation No 1049/2001, against the Commission’s implied decision of refusal, and requested a meeting with it as soon as possible.

14      By letter of 9 February 2010, the Secretariat-General of the Commission reiterated that it had not completed the analysis of the requested documents and that it was not in a position, as indicated in its letter of 8 February 2010, to take a final decision on the application for access to the documents – in particular, with regard to the documents which the applicants had listed as having priority – within the time-limits laid down in Regulation No 1049/2001. It stated that the fact that it had not taken a final decision should not be interpreted as an implied decision of refusal to grant access to the documents requested, but added that the applicants were entitled to bring proceedings before the General Court or to lodge a complaint with the European Ombudsman.

15      In its letter of 22 February 2010, the Secretariat-General of the Commission examined the request for the documents which, in the applicants’ letter of 8 February 2010, had been identified as having priority. It granted access to some of the documents. It stated that it was still in the process of examining the ‘external study carried out by IFPRI based on a general equilibrium modelling approach and using an extended version of the GTAP database and the Mirage model’ and ‘the assessment of other existing modelling exercises carried out by the Commission’s [JRC]’.

16      By letter of 22 February 2010, the applicants asked the Commission to let them know the position regarding the 140 documents which had not been disclosed out of the 200 documents which, in its letter of 9 February 2010, the Commission said that it had identified.

17      By letter of 24 February 2010, the Secretariat-General of the Commission stated that, in its letter of 22 February 2010, it had undertaken a partial examination of the applicants’ request for access and that it was still examining the remaining documents as quickly as possible. It also stated that, counting the attachments separately, a total of 115 documents had been disclosed to the applicants.

18      By letter of 2 July 2010, the Secretariat-General of the Commission disclosed some of the documents requested. It stated that it had identified 140 documents, pointing out that 8 documents had been disclosed by DG AGRI and that 74 documents had been disclosed with its decision of 22 February 2010. Of the remaining 63 documents, the Commission granted the applicants full access to 37 documents and partial access to 2 documents, pursuant to Article 4(6) of Regulation No 1049/2001, and refused access to the remaining 24 documents on the ground that their disclosure would undermine (i) the protection of the public interest as regards international relations, for the purposes of the third indent of Article 4(1)(a) of Regulation No 1049/2001, and (ii) the protection of commercial interests for the purposes of the first indent of Article 4(2) of Regulation No 1049/2001.

 Procedure and forms of order sought

19      By application lodged at the Registry of the General Court on 8 March 2010, the applicants brought the present action.

20      Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the Fifth Chamber, to which the present case was consequently allocated.

21      By way of measures of organisation of procedure, pursuant to Article 64 of the Rules of Procedure of the General Court, the applicants were invited to give their views on the conclusions which they draw in respect of the present case from the judgments in Joined Cases T‑355/04 and T-446/04 Co-Frutta v Commission [2010] ECR II-1 and Joined Cases T-494/08 to T-500/08 and T-509/08 Ryanair v Commission [2010] ECR II-0000. Moreover, S. Hockman QC was asked to provide the Court with all the information relating to his functions and position within ClientEarth, which he has represented since the present action was brought.

22      The Commission and the applicants submitted their replies to the Court’s questions on 14 April and 27 April 2011 respectively.

23      The applicants claim that the Court should:

–        annul the Commission’s decision of 9 February 2010;

–        declare that the Commission has infringed Articles 8(1), 7(1) and 4(3), (6) and (7) of Regulation No 1049/2001 and Article 6(1) of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13);

–        declare that the reasons for a decision refusing access to documents under Article 4(3) of Regulation No 1049/2001 must be stated in a written reply before the expiry of the prescribed time-limits in the two-stage administrative procedure, or be rejected as claims to an exception, and otherwise fall outside the scope of judicial review;

–        order the Commission to provide them with access to all the requested documents;

–        order the Commission to pay the costs.

24      The Commission contends that the Court should:

–        dismiss the action as inadmissible or, in the alternative, declare that the action has become devoid of purpose;

–        order the applicants to pay the costs.

 Law

25      Under Article 111 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.

26      Furthermore, under Article 113 of the Rules of Procedure, the Court may at any time, after hearing the parties, decide of its own motion 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.

27      In the present case, the Court finds that it has sufficient information from the documents in the case-file and has decided to give a decision on the action without taking further steps in the proceedings.

 The admissibility of the second, third and fourth heads of claim

28      By their second and third heads of claim, the applicants claim that the Court should declare that the Commission has infringed certain provisions of Regulation No 1049/2001 and of Regulation No 1367/2006 and that the reasons for refusing access to the documents must be stated in a written reply before the expiry of the time-limits laid down in Regulation No 1049/2001. By their fourth head of claim, the applicants claim also that the Court should order the Commission to provide them with access to all the requested documents.

29      In that regard, it is not for the Court, in the context of a review of legality based on Article 263 TFEU, to make statements of law (see, by analogy, Joined Cases T‑21/95 and T-186/95 Mazzocchi-Alemanni v Commission [1996] ECR-SC I‑A‑501 and II-1377, paragraph 44). Moreover, according to well-established case-law, the Court has no jurisdiction to issue directions to the Community institutions (order in Case T-47/96 SDDDA v Commission [1996] ECR II-1559, paragraph 45, and Case T‑127/98 UPS Europe v Commission [1999] ECR II‑2633, paragraph 50). Under Article 264 TFEU, the Court may only declare the contested act to be void. It is then for the institution concerned, pursuant to Article 266 TFEU, to take the measures needed to comply with the Court’s judgment (see, to that effect, Case T‑74/92 Ladbroke v Commission [1995] ECR II-115, paragraph 75, and UPS Europe v Commission, paragraph 50).

30      The abovementioned heads of claim must consequently be declared inadmissible.

 The head of claim seeking annulment of the Commission’s letter of 9 February 2010

 The nature of the Commission’s letter of 9 February 2010

–       Arguments of the parties

31      The Commission contends that its letter of 9 February 2010, in which it stated that it was not in a position to take a decision on the application for access to documents within the time-limits laid down in Regulation No 1049/2001, cannot be considered to be a decision or a refusal to allow access to the documents. According to the Commission, at the time when the applicants brought their action, there was no implied decision of refusal, for the purposes of Article 8(3) of Regulation 1049/2001, which could be the subject of an action for annulment.

32      The applicants state that, under Article 8(3) of Regulation No 1049/2001, failure by the institution to reply within the prescribed time-limits is to be considered to be a negative reply and entitles the applicant to institute proceedings. They also state that, in its letter of 9 February 2010, the Commission, without disclosing the documents or offering valid reasons for their non-disclosure, informed the applicants of their right to initiate proceedings before the General Court.

–       Findings of the Court

33      It should be borne in mind that, according to settled case-law, only a measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 263 TFEU (Joined Cases T-3/00 and T‑337/04 Pitsiorlas v Council and ECB [2007] ECR II-4779, paragraph 58, and Co-Frutta v Commission, paragraph 32).

34      As regards, more specifically, acts or decisions drawn up in a procedure involving several stages, only measures which definitively lay down the position of the institution on the conclusion of that procedure may be contested by means of an action for annulment. Consequently, measures of a preliminary or purely preparatory nature cannot be the subject of an action for annulment (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 10, and order in Case T-359/09 Jurašinović v Council [2010] ECR II-0000, paragraph 27).

35      The procedure for access to documents, which is governed by Articles 6 to 8 of Regulation No 1049/2001, comprises two stages: (i) the applicant must send the Commission an initial application for access to documents and, in principle, the Commission must respond to that initial application within 15 working days of its registration and (ii) in the event of a total or partial refusal, the applicant may, within 15 working days of receiving the Commission’s initial reply, make a confirmatory application to the Secretariat-General of the Commission, to which the Secretariat-General must, in principle, respond within 15 working days of the registration of that confirmatory application. In the event of a total or partial refusal, the applicant may institute court proceedings against the institution and/or make a complaint to the Ombudsman, in accordance with the conditions laid down in Articles 263 TFEU and 228 TFEU, respectively.

36      In the present case, it should be pointed out that, following the applicants’ confirmatory application, registered on 18 December 2009, the Secretariat-General of the Commission postponed, by letter of 19 January 2010, the deadline for responding by 15 days, under Article 8(2) of Regulation No 1049/2001. It then informed the applicants, by letter of 8 February 2010, that it was unable to reply to their application for access to documents within the time-limits laid down in Article 8(2) of Regulation No 1049/2001. In reply to the applicants’ letter of 8 February 2010 requesting as a matter of priority a number of documents by 9 February 2010, the Secretariat-General of the Commission reiterated, by letter of 9 February 2010, that it was unable to take a final decision within the prescribed time-limits. It is not apparent from the wording of that letter that the Commission had taken a final position concerning the applicants’ application for access to documents.

37      However, the fact remains that, in its letter of 9 February 2010, the Commission not only stated that, after the deadline had been postponed, it was unable to respond to the applicants’ confirmatory application within the prescribed time-limits, but also took care to state that the applicants were entitled to bring proceedings before the General Court or to lodge a complaint with the Ombudsman.

38      In that regard, it should be borne in mind that, under Article 8(3) of Regulation No 1049/2001, failure by the institution to reply within the prescribed time-limits is to be considered to be a negative reply and entitles the applicant to institute court proceedings against the institution and/or to make a complaint to the Ombudsman, in accordance with the relevant provisions of the Treaty on the Functioning of the European Union.

39      It follows that the Commission could postpone the deadline for its decision only once and that, on expiry of the later deadline – 9 February 2010 – an implied decision of refusal of access was deemed to have been adopted.

40      The Commission’s failure to reply must be regarded as having given rise, on expiry of that deadline, to a negative reply which may be the subject of an action for annulment. There can be no doubt cast upon that finding by the fact that, on the very day on which the time-limits laid down in Article 8(2) of Regulation No 1049/2001 expired, the Commission adopted a letter reiterating that it was impossible for it to reply within the time-limits to the applicants’ application for access to documents.

 The applicants’ legal interest in bringing proceedings

 Arguments of the parties

41      The Commission contends that, should the Court consider that there was an implied decision of refusal, the action for annulment would be devoid of purpose inasmuch as the Commission has adopted an express decision which replaced the implied decision of refusal of 9 February 2010.

42      The applicants argue that they still have a legal interest in seeking annulment of the implied decision of refusal of 9 February 2010 in so far as the Commission thereby refused access to approximately 200 documents regarding the environmental impacts of the European Union’s biofuel policies. Furthermore, their legal interest in bringing proceedings continues to exist, notwithstanding the Commission’s express decision of refusal, in order to prevent the Commission’s consistent practice of not respecting the time-limits laid down in Regulation No 1049/2001.

43      The applicants reject the possibility of lodging a new application, for annulment of the Commission’s express decision of 2 July 2010, or of amending the form of order sought, and submit that they do not wish for any additional delay in dealing with their application.

44      In their reply to the Court’s written question, the applicants argued that their case falls to be distinguished from those which gave rise to the judgments in Co-Frutta v Commission and Ryanair v Commission. The present case is based on specific legislation, namely the Aarhus Convention and Regulation No 1367/2006. According to the applicants, the Commission’s practice of adopting express decisions outside the prescribed time-limits infringes the rights established by the Aarhus Convention and by Regulation No 1367/2006, and prevents the applicants inter alia from engaging, in the present case, in the decision-making process in respect of biofuels in environmental matters.

45      The applicants state that the damage suffered, that is to say, the time lost in participating in the decision-making process, cannot be the subject of financial compensation, contrary to what was held in Co-Frutta v Commission.

 Findings of the Court

46      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 (see Ryanair v Commission, paragraph 41 and the case-law cited).

47      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 (see Ryanair v Commission, paragraph 42 and the case-law cited).

48      In the present case, it should be noted that, at the time of lodging the action, the applicants had an interest in seeking annulment of the implied decision of 9 February 2010 refusing their application for access to documents and that their action was admissible at that time.

49      However, the interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be likely, if successful, to procure an advantage for the party bringing it (see Ryanair v Commission, paragraph 43 and the case-law cited).

50      If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the Court on the merits cannot bring the applicant any benefit (see Ryanair v Commission, paragraph 44 and the case-law cited).

51      In the present case, it is common ground that the applicants seek annulment of the Commission’s letter of 9 February 2010. Despite the adoption by the Commission of express decisions of part refusal on 22 February and 2 July 2010, giving access to some documents, the applicants stated in their reply that they do not wish to amend the form of order sought, in the light of the adoption of the Commission decision of 2 July 2010, even though, according to settled case-law, they could do so (Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II-4665, paragraphs 28 and 29, and order in Case T-411/09 Terezakis v Commission [2011] ECR II‑0000, paragraph 18).

52      It follows that there is no need to adjudicate on the present action in that it is directed against the Commission’s implied decision of refusal of 9 February 2010, inasmuch as the applicants no longer have any legal interest in bringing proceedings against that decision on account of the adoption of the express decisions of 22 February 2010 and 2 July 2010. By adopting those express decisions, the Commission in fact withdrew the implied decision of refusal of 9 February 2010.

53      Annulment of the implied decision on grounds of failure to state reasons could do no more than give rise to a new decision, identical in substance to the express decisions. Moreover, consideration of the action against the implied decision cannot be justified, either by the objective of preventing the alleged unlawfulness from recurring, within the meaning of paragraph 50 of the judgment in Case C‑362/05 P Wunenburger v Commission [2007] ECR I-4333, or by that of facilitating an action for damages, since it is possible to attain both those objectives through consideration of actions brought against the express decisions (see, to that effect, Ryanair v Commission, paragraph 46 and the case-law cited).

54      The above findings cannot be called into question by the argument that the damage suffered, that is to say, the impossibility of participating in the decision-making process on account of the Commission’s delay in adopting its express decisions, cannot be the subject of financial compensation. Regardless of the nature of the damage purportedly suffered and the legal remedy chosen to assert their rights, it was necessary for the pleas in law raised by the applicants as grounds for annulment to be directed against the express decisions adopted by the Commission, which removed the implied decision of 9 February 2010 from the legal order.

55      The above findings are not, moreover, invalidated by the supposedly specific application, relied on by the applicants, of the Aarhus Convention and of Regulation No 1367/2006 to access to documents in environmental matters, in so far as Article 3 of Regulation No 1367/2006 expressly provides that Regulation No 1049/2001 is to apply to any request by an applicant for access to environmental information held by Community institutions and bodies. It follows that the handling of applications for access to documents on environmental matters is also covered by the general rules governing access to documents and, in particular, by Articles 7 and 8 of Regulation No 1049/2001.

56      Consequently, there is no need to adjudicate on the present action.

 Costs

57      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.

58      In the present case, as regards the loss of any legal interest in bringing proceedings against the implied decision of refusal, it should be stated, first, that the Commission – as it itself conceded in its letter of 8 February 2010 – was unable, on expiry of the time-limits laid down in Article 8(2) of Regulation No 1049/2001, to take a decision. Secondly, although the Commission replied in part to the applicants’ request, by granting, by its letter of 22 February 2010, access to some of the documents requested, the fact remains that, contrary to the statements made in its letter of 24 February 2010 – that the applicants could count on a reply within the shortest possible time-frame – the final decision was not adopted until 2 July 2010, that is to say, almost five months after the expiry of the time-limits laid down in Article 8 of Regulation No 1049/2001.

59      Consequently, in view of the factual circumstances characterising the present case and, in particular, given that the Commission manifestly exceeded the time-limits under Article 8(1) of Regulation No 1049/2001 for replying to the confirmatory application, with the result that the applicants had no other choice, in order to safeguard their rights, than to bring the present action against the implied decision of refusal, the Commission must be ordered to bear its own costs and to 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 shall bear its own costs and pay those incurred by ClientEarth, the European Federation for Transport and Environment (T&E), the European Environmental Bureau (EEB) and BirdLife International.

Luxembourg, 9 November 2011.

E. Coulon

 

       S. Papasavvas

Registrar

 

       President


* Language of the case: English.