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 – No need to adjudicate)
In Case T‑449/10,
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,
European Commission, represented by K. Herrmann and C. ten Dam, acting as Agents,
APPLICATION for annulment of the implied decision of the Commission of 20 July 2010 refusing access to certain documents relating to drafts of a report on the Global Trade and Environmental Impact Study of the Biofuels Mandate of the European Union,
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges
Registrar: E. Coulon,
makes the following
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 2 April 2010, the applicants asked the Directorate-General for Trade of the European Commission (‘DG TRADE’) for access to ‘drafts of the … report entitled “Global Trade and Environmental Impact of the EU biofuels mandate” drawn up by the International Food Policy Research Institute, including the documents analysing the 7% scenario and its associated impacts on land use change, and all communications – including the emails from the Directorates-General and third parties – that resulted in the decision to settle on the currently estimated volume of 5.6% of road transport fuels [consisting in biofuels produced through land-use] in 2020 to meet the 10% renewable energy mandate by 2020’. In so far as the applicants had already applied, on 15 October 2009, for access to similar documents dating from before that date, they requested access only to documents dating from after 15 October 2009, with the sole addition of earlier documents which had not been covered by their first application. The application for access to those documents was made 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) and 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).
6 That application was registered by the Commission on 6 April 2010.
7 By letter of 27 April 2010, DG TRADE informed the applicants that the deadline for replying to their application was being postponed by 15 days in view of the number of documents requested.
8 By letter of 8 June 2010, the applicants submitted a confirmatory application, within the meaning of Article 7(2) of Regulation No 1049/2001, to the Secretariat-General of the Commission.
9 By letter of 29 June 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, owing to the complexity of the issue and the need to consult the Commission’s internal services.
10 By letter of 19 July 2010, the Secretariat-General of the Commission informed the applicants that it would not be able to give a final decision on the request for access to documents by the required deadline – 20 July 2010 – in so far as the handling of their request required the consultation of third parties, pursuant to Article 4(4) of Regulation No 1049/2001, and internal consultations.
11 By letter of 6 December 2010, the Secretariat-General of the Commission sent the applicants six of the documents requested. It took the view, however, that the remaining documents could not be sent to the applicants because their disclosure would undermine 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
12 By application lodged at the Registry of the General Court on 20 September 2010, the applicants brought the present action.
13 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.
14 By document lodged at the Court Registry on 25 January 2011, the Kingdom of Denmark applied for leave to intervene in the present proceedings in support of the form of order sought by the applicants.
15 By order of 22 March 2011, the President of the Fifth Chamber of the Court granted the Kingdom of Denmark leave to intervene in support of the form of order sought by the applicants.
16 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  ECR II-1 and Joined Cases T-494/08 to T-500/08 and T-509/08 Ryanair v Commission  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.
17 The Commission and the Kingdom of Denmark submitted their replies to the Court’s questions on 14 April 2011 and the applicants submitted their replies to the Court’s questions on 27 April 2011.
18 By document of 5 May 2011, the Kingdom of Denmark informed the Court that it was withdrawing its intervention in support of the applicants.
19 By order of 24 June 2011, the Kingdom of Denmark was removed from the register as intervener in the present case.
20 The applicants claim that the Court should:
– annul the Commission’s implied decision of refusal of 20 July 2010;
– order, pursuant to Article 50 of the Rules of Procedure of the General Court, that the present case be joined with Case T‑120/10;
– declare that the Commission has infringed Articles 7(1) and (3), 8(1) and (2), and 4 of Regulation No 1049/2001 and Article 6 of Regulation No 1367/2006;
– declare that the reasons for a decision refusing access to documents under Article 4 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;
– declare that the public has an interest in timely access to environmental information within the time-limits established by Regulation No 1049/2001, in particular for requests for information relating to emissions in the environment, pursuant to Article 6 of Regulation No 1367/2006;
– declare that the Commission must produce the documents on a rolling basis without waiting for all the documents to be in its possession before sending them to the applicants;
– order the Commission to provide access to all the requested documents with the exception of those covered by Article 4(1) of Regulation No 1049/2001;
– order the Commission to pay the costs.
21 The Commission contends that the Court should:
– declare that the action has become devoid of purpose and dismiss it as inadmissible;
– order the applicants to pay the costs.
22 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.
23 Furthermore, under Article 113 of the Rules of Procedure, the General 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.
24 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 third, fourth, fifth, sixth and seventh heads of claim
25 By their third, fourth, fifth and sixth heads of claim, the applicants claim, respectively, that the Court should declare that: (i) the Commission has infringed certain provisions of Regulation No 1049/2001 and of Regulation No 1367/2006; (ii) the reasons for refusing access to documents must be stated in a written reply within the time-limits laid down in Regulation No 1049/2001; (iii) the public has an interest in timely access to environmental information; and (iv) the Commission must produce the documents on a rolling basis, without waiting to have all the documents in its possession. Moreover, by the seventh head of claim, the applicants claim also that the Court should order the Commission to provide them with access to all the requested documents.
26 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  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  ECR II-1559, paragraph 45, and Case T‑127/98 UPS Europe v Commission  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  ECR II-115, paragraph 75, and UPS Europe v Commission, paragraph 50).
27 The above heads of claim must consequently be declared inadmissible.
The applicants’ legal interest in bringing proceedings against the implied decision of the Commission refusing access to the documents
Arguments of the parties
28 The Commission contends that, owing to the adoption of the express decision of refusal of 6 December 2010, the applicants no longer have a legal interest in seeking the annulment of the implied decision of refusal of 20 July 2010.
29 The applicants argue that they still have a legal interest in seeking annulment of the implied decision of refusal of 20 July 2010 since the Commission has still not granted them access to some of the documents covered by their application of 2 April 2010. Furthermore, their legal interest in bringing proceedings continues to exist, notwithstanding the Commission’s express decision of refusal of 6 December 2010, in order to put an end to the Commission’s consistent practice of not respecting the time-limits laid down in Regulation No 1049/2001.
30 The applicants also argue that the judgments in Co-Frutta v Commission and Ryanair v Commission are not applicable in the present case since they do not concern access to documents relating to environmental matters. The present case is based on specific legislation – namely, the Convention on access to information, public participation in decision-making and access to justice in environmental matters (‘the Aarhus Convention’), approved by the Community on 17 February 2005 (OJ 2005 L 124, p. 1), and on Regulation No 1367/2006 – which guarantee the right of public access to environmental information and the right of public participation in decision-making in environmental matters.
31 According to the applicants, the Commission’s practice of adopting express decisions outside the prescribed time-limits, and at any time, is in breach of the right of access to environmental information governed by the Aarhus Convention and by Regulation No 1367/2006.
32 In their reply to the written question put by the Court, pursuant to Article 64 of the Rules of Procedure, the applicants also state that, by contrast with the position in Co-Frutta v Commission and Ryanair v Commission, the loss sustained because, as a result of the Commission’s failure to respect the time-limits, they were deprived of their right to participate in the decision-making process in environmental matters cannot be remedied by an action for damages.
Findings of the Court
33 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).
34 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).
35 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 refusal of 20 July 2010 and that the action was therefore admissible.
36 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).
37 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).
38 In the present case, it is common ground that the applicants seek annulment of the implied decision of refusal of 20 July 2010. It is apparent from the arguments set out by the applicants in their reply that they did not wish to amend the form of order sought in the present action in the light of the adoption of the Commission decision of 6 December 2010.
39 It follows that there is no need to adjudicate on the present action in that it is directed against the implied decision of refusal, inasmuch as the applicants no longer have any legal interest in bringing proceedings against that decision on account of the adoption of the express decision of 6 December 2010. By adopting that express decision, the Commission in fact withdrew the implied decision of refusal.
40 Annulment of the implied decision on grounds of a procedural defect could do no more than give rise to a new decision, identical in substance to the express decision. 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  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 decision (see, to that effect, Ryanair v Commission, paragraph 46 and the case-law cited).
41 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 decision, 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 Commission’s express decision of refusal of 6 December 2010, which removed the implied decision of 20 July 2010 from the legal order.
42 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.
43 Consequently, there is no need to adjudicate on the present action.
44 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.
45 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)
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.