Language of document :

ORDER OF THE GENERAL COURT (Fifth Chamber)

27 November 2012 (*)

(Action for annulment – Access to documents – Regulation (EC) No 1049/2001– Documents relating to funding decisions for grants to Israeli and Palestinian non-governmental organisations under the ‘Partnership for Peace’ programme and the European Instrument for Democracy and Human Rights – Partial refusal of access – Exception relating to the protection of the public interest as regards public security – Obligation to state the reasons on which the decision is based – Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

In Case T‑17/10,

Gerald Steinberg, residing in Jerusalem (Israel), represented by T. Asserson, Solicitor,

applicant,

v

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

defendant,

APPLICATION for annulment of Commission Decision SG.E.3/MV/psi D (2009) 3914 of 15 May 2009, partially refusing the applicant access to certain documents relating to funding decisions for grants to Israeli and Palestinian non-governmental organisations under the ‘Partnership for Peace’ programme and the European Instrument for Democracy and Human Rights (EIDHR),

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

 Legal context

1        The purpose 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) is to define the principles, conditions and limits governing the right of access to the documents of those institutions provided for in Article 255 EC.

2        According to Article 2(1) of Regulation No 1049/2001:

‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.’

3        Under the heading ‘Exceptions’, Article 4 of Regulation No 1049/2001 provides inter alia:

‘1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

(a) the public interest as regards:

–        public security,

–        …

(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

–        commercial interests of a natural or legal person, including intellectual property,

–        …

unless there is an overriding public interest in disclosure.’

4        Article 8 of Regulation No 1049/2001, headed ‘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 [255 EC] and [195 EC], 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 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 EC Treaty.’

 Background to the dispute

5        The applicant, Mr Gerald Steinberg, is the President of NGO Monitor, a non-governmental organisation (NGO) with its headquarters in Jerusalem (Israel).

6        By letter of 23 October 2008, the applicant requested from the Commission of the European Communities, on the basis of Regulation No 1049/2001, access to a series of documents relating to funding decisions for grants to Israeli and Palestinian NGOs under the ‘Partnership for Peace’ (PfP) programme and the European Instrument for Democracy and Human Rights (EIDHR).

7        By letter of 21 November 2008 (‘the reply to the initial request’), the Commission refused access to those documents, relying on the exceptions set out in Articles 4(1)(b), 4(2) and 4(3) of Regulation No 1049/2001.

8        By letter of 27 November 2008, the applicant lodged a confirmatory application, within the meaning of Article 7(2) of Regulation No 1049/2001, with the Secretary General of the Commission.

9        By letter of 3 December 2008, the Secretariat-General of the Commission acknowledged receipt of that confirmatory application.

10      By letter of 5 January 2009, the Secretariat-General of the Commission informed the applicant that it had not yet managed to identify all the documents covered by the request for access and was not, therefore, in a position to carry out a valid analysis of those documents. Consequently, it extended the period for replying by 15 working days.

11      By email of 26 January 2009, the Secretariat-General of the Commission informed the applicant that his confirmatory application could not be dealt with within the extended period on the ground that it concerned hundreds of documents. It therefore requested him, pursuant to Article 6(3) of Regulation No 1049/2001, to limit the scope of his application by providing a more detailed description of the kind of documents he wished to receive or, if that was not possible, to categorise in order of priority the various categories of documents covered by that application.

12      By letter of 5 February 2009, the applicant informed the Secretariat‑General of the Commission that he was not in a position to limit the scope of his application. On the other hand, he informed him of an order of priority in respect of the various categories of documents concerned.

13      By email of 4 March 2009, the Secretariat General of the Commission informed the applicant that, in the light of the fact that he had not limited the scope of his application, it needed additional time to reply and that it hoped to be able to give him a final reply by the end of April 2009.

14      By email of 29 April 2009, the Secretariat-General of the Commission informed the applicant that the analysis of the requested documents had been completed but that an additional period was needed to ‘formalise’ the final reply and prepare the accompanying documents. It stated that he would be provided with that reply by 15 May 2009 at the latest.

15      By decision of 15 May 2009, the Secretary General of the Commission granted the applicant partial access to the requested documents (‘the contested decision’). In essence, she considered that the undisclosed parts of those documents were covered by the exception relating to the protection of the public interest as regards public security as laid down in the first indent of Article 4(1)(a) of Regulation No 1049/2001, the exception relating to the protection of privacy and the integrity of the individual as laid down in Article 4(1)(b) of Regulation No 1049/2001 and the exception relating to the protection of the commercial interests of third parties as laid down in first indent of Article 4(2) of Regulation No 1049/2001.

16      The Commission claims that the contested decision was attached to an email sent to the applicant by its Secretariat-General on 15 May 2009, in which it was stated that the Annexe to that decision, which contained a list of projects which had received funding from the European Union and the requested documents, were on a CD-ROM which would be sent to him by mail.

17      By letters of 5, 12 and 16 July 2009, the applicant informed the Secretariat-General of the Commission that, on 24 May 2009, he had received certain incomplete documents, without any explanation as to why complete versions of those documents could not be provided.

18      On 31 July 2009, the Secretariat-General of the Commission replied to the applicant’s letters of 5, 12 and 16 July 2009. It confirmed that all the documents covered by the request for access had been examined and sent to him, at least in a redacted version. Furthermore, it annexed to its letter a list containing information concerning each organisation or project in respect of which the applicant claimed that documents had been withheld. Lastly, it stated in particular that ‘the information that [had been] withheld as well as the reasons for not granting full access to the documents [were] fully explained in the [contested decision]’ and that that decision ‘[contained] the Commission’s final position on [the] application for access’.

19      On 17 September 2009, the applicant sent a letter to the Secretariat-General of the Commission, in which he stated that he had not received the contested decision, but only an envelope, which was not accompanied by a covering letter, containing a CD-ROM and a document with the handwritten note ‘Annexes to Confirmatory Request’. He requested the Secretariat-General to send him the contested decision immediately.

20      On 18 and 19 October 2009, the applicant again sent the same letter as that of 17 September 2009 to the Secretariat-General of the Commission.

21      By letter dated 10 November 2009, sent by registered post with acknowledgment of receipt, the Secretariat-General of the Commission sent the applicant a copy of the contested decision and of the covering email allegedly sent on 15 May 2009.

 The contested decision

22      In point 1 of the contested decision, the Commission refers to the exchanges of correspondence which took place between it and the applicant before the adoption of that decision.

23      In point 2 of the contested decision, the Commission describes the scope and context of the request for access submitted by the applicant. Having set out the objectives and functioning of the PfP and the EIDHR, it states that the requested documents fall within four categories and relate to the NGOs operating in or carrying out activities in Israel and/or the Occupied Palestinian Territory and in receipt of European Union grants following funding decisions taken in 2006, 2007 and 2008 following calls for proposals issued under the PfP and EIDHR programmes.

24      The Commission defines the four categories of documents at issue as follows:

–        category A: 208 proposal evaluation grids concerning 104 grant winning projects of 9 calls for proposals under the EIDHR programme and 2 calls for proposals under the PfP programme; the direct grant request and decision of 1 project under the PfP programme;

–        category B: 11 evaluation reports/funding decisions of 9 calls for proposals issued under the EIDHR programme and 2 calls for proposals issued under the PfP programme;

–        category C: 8 Result Oriented Monitoring (ROM) reports concerning projects funded under the EIDHR and PfP programmes;

–        category D: 6 financial audits/expenditure verifications concerning projects funded under the EIDHR and PfP programmes.

25      The Commission then explains why the number of documents in categories C and D is smaller than the number of projects financed. It adds that it annexes to the contested decision a list detailing the 105 projects which received European Union funding on the basis of the 11 calls for proposals issued under the EIDHR and PfP programmes falling within the scope of the applicant’s request for access.

26      Lastly, and still in point 2, the Commission details, for each of the categories referred to in the preceding paragraph, the nature of the blanked out parts as follows:

‘For category A:

i) the identity of a Commission official in his/her role as evaluator;

ii) the detailed scores on the individual sections and subsections of each evaluation grid filled out by a Commission official in his/her role as evaluator concerning the following topics: financial and operational capacity, relevance, methodology, sustainability and budget and cost-effectiveness (this does not apply to the total evaluation scores);

iii) additional remarks made by an evaluator.

For category B:

i) the identity of Commission officials participating in evaluation committees;

ii) the scores awarded by individual evaluators;

iii) additional remarks made by the evaluation committee as a whole or one of its members;

In addition, any information in the evaluation reports concerning projects which do not fall within the scope of [the applicant’s] request was deleted.

For category C:

i) the identity of the person performing the monitoring and the Commission officials involved;

ii) the conclusions of the monitoring.

For category D:

i) the identity of the audit company;

ii) the conclusions of the audit.’

27      In points 3 to 5 of the contested decision, the Commission sets out the grounds for its refusal to grant access to the parts of the requested documents referred to in paragraph 26 above.

28      In point 3, entitled ‘Protection of public security’, the Commission states that all the parts blanked out are covered by the exception referred to in the first indent of Article 4(1)(a) of Regulation No 1049/2001 ‘[g]iven the particular circumstances under which the activities [concerned] are carried out’. In that regard, it states that the projects concerned are implemented ‘under particularly challenging circumstances’ and deal with delicate subjects which affect either the vested interests or the deeply-held convictions of a number of bodies, in both Israel and the Occupied Palestinian Territory. It goes on to say that the NGOs carry out their activities in an unstable environment and under constant threat of armed conflicts and that there is a high risk of those activities attracting hostile attention which can range from the publication of newspaper or internet articles to hate-mail campaigns and even threats to moral and/or physical integrity, which may have implications for public security. The disclosure of the blanked out parts of the requested documents would put in the public domain detailed information on the projects concerned which could be used to exert pressure on the persons concerned, including threats of harm. The Commission states that those persons are not only the persons working for the NGOs at issue and the other recipients of grants, but also the persons involved in the selection and evaluation process of the various projects concerned.

29      In point 4, entitled ‘Protection of the privacy and integrity’, the Commission states that the proposal evaluation grids and the evaluation reports/funding decisions contain the names of its officials who participated in the evaluation committees of the various calls for proposals. It takes the view that disclosing their identities could expose them to the risk of harassment from persons or organisations that disagree with the conclusions of those committees. External companies performing audits and the persons carrying out monitoring activities would be exposed to the same risk if their identities were to be revealed. The Commission concludes that access to the names of the members of the evaluation committees, the audit companies and the persons who carried out monitoring activities must be refused on the basis of Article 4(1)(b) of Regulation 1049/2001. It considers that the same applies to the specific scores and grades given to the projects covered by the request for access, to the remarks made by the individual evaluators and evaluation committees and to the conclusions of the ex-post monitoring reports on the basis that, having regard to the particularly challenging circumstances under which the projects concerned are implemented by the NGOs concerned, public disclosure of that information would pose a risk of damaging those NGOs.

30      In point 5, entitled ‘Protection of commercial interests’, the Commission states that all the documents contain detailed information on the NGOs concerned, the funded projects and the way in which they are, or have been, carried out. Again referring to the particular circumstances in which those NGOs perform their activities, it maintains that there is a high risk that that information would be used by opposing groups or persons to damage the reputation of those NGOs and thereby put at risk their ability to properly carry out their activities. It concludes that the exception referred to in the first indent of Article 4(2) of Regulation No 1049/2001 is applicable to that information.

31      Lastly, in point 6 of the contested decision, the Commission examines whether there is an overriding public interest, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001, in disclosure of the blanked out parts of the requested documents. First, it states that the exceptions set out in Article 4(1) of that regulation are absolute in that they do not have to be balanced against a possible overriding public interest. Secondly, while recognising the importance of transparency and accountability in the attribution of European Union funds, it points out that it has no information to demonstrate the existence of an overriding public interest, and that by granting partial access to all the requested documents it has struck the right balance between the principle of transparency and other legitimate interests.

 Procedure and forms of order sought

32      By application lodged at the Registry of the General Court on 19 January 2010, the applicant brought the present action.

33      On 7 May 2010, the Court (Fourth Chamber) sent the applicant, by way of measures of organisation of procedure, a request for information to which he responded within the prescribed period.

34      By separate document lodged at the Court Registry on 19 July 2010, the applicant submitted an application for the adoption of measures of organisation of procedure by which the General Court was requested to order the Commission to respond to a series of questions. In the observations which it submitted in that regard within the prescribed period, the Commission contested that application.

35      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.

36      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to disclose within 15 days the documents identified in Annex A14 to the application;

–        order the Commission to pay the costs.

37      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

38      Under Article 111 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.

39      In the present case, the General Court considers that it has sufficient information from the documents before it and decides, in accordance with Article 111 of the Rules of Procedure, to give a decision on the present action without opening the oral procedure.

40      In support of its action, the applicant relies on four pleas in law alleging infringement of, first, Article 2(1) of Regulation No 1049/2001, secondly, Article 4 of Regulation No 1049/2001, thirdly, Article 7 of Regulation No 1049/2001 and, fourthly, Article 8 of Regulation No 1049/2001.

41      Although not formally making a plea of inadmissibility pursuant to Article 114 of the Rules of Procedure, the Commission makes three objections to the admissibility of the applicant’s claims. The first concerns the starting point of the period prescribed for bringing the action and the allegation that that action is out of time. The second relates to the head of claim seeking an order that the Commission disclose the documents listed in Annex A14 to the application. The third concerns the application for annulment of the reply to the initial request, set out in paragraph 51 of the application.

42      The Court considers it appropriate to examine, first, the second and third pleas of inadmissibility put forward by the Commission and, secondly, the pleas in law relied on by the applicant.

 The second and third pleas of inadmissibility put forward by the Commission

 Admissibility of the head of claim seeking an order that the Commission disclose the documents listed in Annex A14 to the application

43      The Commission submits that that head of claim is inadmissible on the ground that it is not for the Court to issue directions to it as regards the manner in which it is to comply with a judgment delivered in an action for annulment.

44      It is settled case-law that the General Court is not entitled, in its judicial review of legality, to issue directions to the institutions or to assume the role assigned to them. That limitation of the scope of judicial review applies to all types of contentious matters that might be brought before it, including those concerning access to documents (see Case C‑353/01 P Mattila v Council and Commission [2004] ECR I‑1073, paragraph 15 and the case-law cited).

45      Consequently, for the applicant to request that the Court order the Commission to grant him access to the documents listed in Annex A14 to the application is manifestly inadmissible.

 Admissibility of the application for annulment of the reply to the initial request

46      The Commission submits that the applicant’s claim, set out in paragraph 51 of the application, for annulment of the reply to the initial request is inadmissible on the ground that it is not an actionable measure for the purposes of Article 263 TFEU.

47      It must be borne in mind that, according to settled case-law, concerning acts or decisions adopted by a procedure involving several stages, only those measures which definitively lay down the position of the institution concerned on the conclusion of the procedure are, in principle, acts which may be the subject of an action for annulment; preliminary or purely preparatory measures may not be the subject of an action for annulment (Case 60/81 IBM v Commission [1981] ECR 2639, paragraphs 9 and 10 and judgment of 10 January 2006 in Case C‑373/04 P Commission v Alvarez Moreno, not published in the ECR, paragraph 42).

48      It is also settled case-law that the procedure for access to documents is carried out in two stages. The reply to an initial request for access to documents is only a first position adopted, which enables the applicants to request the Commission to re‑examine it; only the measure adopted by the Commission in response to a confirmatory application, which replaces the initial position adopted, constitutes a decision and is capable of producing legal effects such as to affect the interests of applicants and, therefore, of being the subject of an action for annulment pursuant to Article 263 TFEU (order in Case C‑208/11 P Internationaler Hilfsfonds v Commission [2012] ECR I-0000, paragraphs 29 and 30; Joined Cases T‑355/04 and T‑446/04 Co‑Frutta v Commission [2010] ECR II‑1, paragraphs 34 and 35).

49      Accordingly, the reply to the initial request does not produce legal effects and cannot be held to constitute an actionable measure. It follows that the action must be dismissed as manifestly inadmissible in so far as it is directed against that reply.

 The pleas relied on by the applicant

50      After setting out certain preliminary considerations, the Court will examine the second plea, then the first plea and, lastly, the third and fourth pleas.

 Preliminary considerations

51      Regulation No 1049/2001, as is stated in Article 1 and Article 2(1) and (3), seeks to grant the public a right of access to documents of the institutions in all areas of activity of the European Union, subject to certain defined exceptions.

52      In accordance with recital 1 in the preamble thereto, that regulation reflects the intention expressed in the second paragraph of Article 1 EU, inserted by the Treaty of Amsterdam, to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 in the preamble to Regulation No 1049/2001, the right of public access to documents of the institutions is connected with the democratic nature of those institutions.

53      According to settled case-law, the exceptions to access to documents must be interpreted and applied strictly so as not to frustrate application of the general principle that the public should be given the widest possible access to documents held by the institutions (Case C‑64/05 P Sweden v Commission [2007] ECR I‑11389, paragraph 66, and Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑4723, paragraph 36).

54      Furthermore, the examination required for the processing of a request for access to documents must be specific in nature. For one thing, the mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception (Case T‑2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121, paragraph 69). In principle, such an application can be justified only if the institution has previously determined, first, that access to the document was likely, specifically and actually, to undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049/2001, that there is no overriding public interest justifying disclosure of the document concerned (see, to that effect, Co‑Frutta v Commission, paragraph 48 above, paragraph 123). The next consideration is that the risk of the protected interest’s being undermined must be reasonably foreseeable and not purely hypothetical (see judgment of 11 March 2009 in Case T‑166/05 Borax Europe v Commission [2009], not published in the ECR, paragraph 88 and the case-law cited). That examination must be apparent from the reasons for the decision (Verein für Konsumenteninformation v Commission, paragraph 69).

55      A concrete, individual examination of each document is also necessary where, even if it is clear that a request for access refers to documents covered by an exception, only such an examination can enable the institution to assess the possibility of granting the applicant partial access under Article 4(6) of Regulation No 1049/2001 (see, to that effect, Case T-123/99 JT’s Corporation v Commission [2000] ECR II‑3269, paragraph 46).

 The second plea, alleging infringement of Article 4 of Regulation No 1049/2001

56      The applicant submits that, by refusing to grant him access to the documents covered by his request of 23 October 2008, the Commission infringed the provisions of Article 4 of Regulation No 1049/2001.

57      In support of that plea, first, the applicant submits that ‘[his] request does not give rise to a basis for reliance upon any of the exceptions in Article 4’ and that ‘no argument, facts or evidence have been provided which support reliance on any of those exceptions’. In the reply, he states that the Commission did not state ‘which specific exception or exceptions appl[ied] to each document’ and claims that the reasoning contained in the contested decision does not prove that each document was assessed individually.

58      Also in the reply, the applicant states that he disputes that access to the undisclosed parts of the documents requested could have been refused for reasons of protection of public security, protection of the privacy and integrity of individuals and protection of commercial interests. He adds that the exceptions invoked were not applied consistently or interpreted and were applied strictly.

59      Secondly, the applicant submits that, in any event, ‘the process by which tens of millions of Euros in public funds are provided to NGOs and civil society organisations concerned in the Arab-Israeli conflict creates an “overriding public interest in disclosure” ’.

60      According to the Commission, the second plea must be understood as meaning that the applicant complains that it did not provide an adequate statement of the reasons for the contested decision. The Commission claims that that complaint is unfounded. In the rejoinder, it adds that it correctly applied the exceptions referred to in the first indent of Article 4(1)(a) of Regulation No 1049/2001 and in Article 4(1)(b) of Regulation No 1049/2001.

61      In the contested decision, the Commission took the view that all the blanked out passages of the requested documents were covered by the exception referred to in the first indent of Article 4(1)(a) of Regulation No 1049/2001 and that certain of those passages were also covered by the exception set out in Article 4(1)(b) of that regulation or by that set out in the first indent of Article 4(2) of that regulation.

62      Under the first indent of Article 4(1)(a) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of the public interest as regards public security.

63      It should be borne in mind that the decision to be adopted by an institution pursuant to the provision referred to in the preceding paragraph is of a complex and delicate nature and calls for the exercise of particular care, especially in view of the singularly sensitive and essential nature of the protected interest.

64      Since such a decision calls for a broad discretion, the General Court’s review of its legality must be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers (Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 34).

65      In the first place, the applicant disputes the adequacy of the statement of reasons for the contested decision as regards, in particular, that exception.

66      It must be borne in mind that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the EU judicature to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63, and Sison v Council, cited in paragraph 64 above, paragraph 80).

67      In the case of a decision refusing access to a document on the basis of an exception provided for in Article 4 of Regulation No 1049/2001, the statement of reasons must explain how access to that document could specifically and effectively undermine the interest protected by that exception (Sweden and Turco v Council, paragraph 53 above, paragraph 49, and Borax Europe v Commission, paragraph 54 above, paragraph 44).

68      In support of its complaint alleging an insufficient statement of reasons, the applicant, first, claims, in very general terms, that ‘no argument, facts or evidence have been provided which support reliance on’, in particular, the exception relating to the protection of the public interest as regards public security.

69      In that regard, it is sufficient to point out that this claim is manifestly unfounded. As is apparent from points 2 and 3 of the contested decision (see paragraphs 23 and 28 above), the Commission stated precisely why it regarded the blanked out passages of the requested documents as covered by that exception.

70      Secondly, the applicant complains that the Commission did not state which exception applied specifically to each document.

71      That complaint is completely unjustified as regards the exception under consideration, namely, that referred to in the first indent of Article 4(1)(a) of Regulation No 1049/2001. As has already been pointed out in paragraphs 28 and 61 above, that exception covers all the blanked out parts of the requested documents. In addition, in the contested decision, the Commission detailed the documents which were covered by the applicant’s request, by classifying them in four categories (see paragraphs 23 and 24 above), and the nature of the blanked out passage in those documents (see paragraph 26 above).

72      Thirdly, the applicant claims that the statement of reasons contained in the contested decision does not prove that each document was assessed individually.

73      That claim is manifestly unfounded. It is clear from the contested decision that the Commission carried out a specific and individual examination of the requested documents. That is especially shown by the fact that each of those documents contains passages blanked out in accordance with the exception under consideration.

74      In the light of the foregoing, the complaint alleging an insufficient statement of reasons must be rejected as manifestly unfounded.

75      In the second place, the applicant contests the applicability of the exception relating to the protection of the public interest as regards public security in the present case.

76      It is apparent from the contested decision that the refusal of access to the blanked out passages of the requested documents is, in essence, based on the apprehension that the detailed information on the projects in question which they contain could be used to exert pressure on the persons concerned, which may range from the publication of newspaper or internet articles to hate-mail campaigns and even threats to their physical or moral integrity, and thus disturb public security.

77      The Commission relies on a series of factors relating to the objectives of the PfP and the EIDHR, the particular circumstances in which the NGOs concerned carry out their activities and the nature of the projects to which grants are given to arrive at its conclusion that the abovementioned risks exist.

78      So first, point 2 of the contested decision refers to the objectives of the PfP and the EIDHR, which are the programme and the instrument under which the grants, which are the subject-matter of the funding decisions in the applicant’s request for access, were made.

79      The PfP is a European Union programme which supports local and international civil society initiatives that promote peace, tolerance and non-violence in the Middle East. It seeks to strengthen and consolidate relationships and direct cooperation with civil society, based on equality and reciprocity between Israelis, Palestinians and other Arabs, and to establish confidence between those different parties. The projects supported include defining and implementing conflict management mechanisms and the educating of communities in aspects and techniques of conflict management and of the promotion of peace.

80      The EIDHR is a European Union financing instrument for the promotion of democracy and human rights worldwide established by Regulation (EC) No 1889/2006 of the European Parliament and of the Council of 20 December 2006 (OJ 2006 L 386, p. 1). The assistance granted under that instrument is aimed in particular at enhancing the respect for and observance of human rights and fundamental freedoms, as proclaimed in the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948, and other international and regional human rights instruments, and at promoting and consolidating democracy and democratic reform in third countries. Its methods are essentially by support for civil society organisations, by providing support and solidarity to human rights defenders and victims of repression and abuse, and by strengthening civil society operating in the field of human rights and in the promotion of democracy. The assistance may be granted without the consent of governments or other public authorities of the third countries concerned.

81      Secondly, point 2 of the contested decision shows that the requested documents concern the NGOs operating in or carrying out activities in Israel and/or the Occupied Palestinian Territory. As is pointed out in point 3 of the contested decision, that region is unstable, in the grip of great tension and presents a very tense security situation, with the risk of violent confrontations or even of armed conflicts. The NGOs, both Israeli and Palestinian, therefore carry out their activities in difficult conditions. As the Commission states in its written pleadings, the situation is particularly complex for the Palestinian NGOs because the Palestinian Authority of the West Bank and of the Gaza Strip expressly forbids any co-operation between them and the Israeli NGOs. The implementation, by Palestinian NGOs, of projects of the kind covered by the PfP or the EIDHR may be perceived by some radical groups as collaboration with Israel.

82      Lastly, and still in point 3 of the contested decision, it is pointed out that projects in receipt of European Union funding under the PfP or the EIDHR relate to sensitive subjects which may go against the specific interests of or be in conflict with the convictions of certain groups of persons or bodies, situated both in Israel and in the Occupied Palestinian Territory. It is apparent from the list of projects on the CD-ROM annexed to the contested decision, that, in fact, those projects relate inter alia to such delicate religious, ethical or political subjects as the promotion of the rights of Palestinian women; the equal treatment of men and women in the field of work; sexual and domestic violence; violence against children; respect for human rights; the promotion of the rights of Palestinians through the media; migrant workers who are victims of the slave trade; the relationship between the police and the Arab community; equal rights for Arabs in Israel; the conditions of detention of Palestinians imprisoned in Israel; the promotion of freedom of movement and of the right to a status for Palestinian residents; the combating of torture; media coverage of the Israeli-Palestinian conflict; and the final status of Jerusalem.

83      The applicant in no way disputes that the facts described in paragraphs 78 to 82 above are correct, nor does he put forward the slightest argument to show that the Commission made a manifest error of assessment in finding that there was a high risk that the activities of the NGOs in question would attract hostile attention which could result in threats to the moral and/or physical integrity of the various persons concerned and thus disturb public security, with the result that it was necessary to blank out certain detailed information on the projects in question in the requested documents. Essentially, he merely make general assertions.

84      In addition the applicant does not claim that the Commission misused its powers in applying, in the present case, the exception provided for by the first indent of Article 4(1)(a) of Regulation No 1049/2001 and that nothing in the documents before the Court leads to the conclusion that there was a breach of procedural rules.

85      Consequently, the head of claim alleging infringement of the first indent of Article 4(1)(a) of Regulation No 1049/2001 must be rejected as manifestly unfounded.

86      In the third place, the applicant complains that the Commission did not take account of the fact that there was, in the present case, an overriding public interest in the complete disclosure of the requested documents.

87      In that regard, it is sufficient to point out that the exceptions to access to documents, laid down in Article 4(1)(a) of Regulation No 1049/2001, are drafted in mandatory terms. It follows that the institutions must refuse access to documents covered by those exceptions once the relevant circumstances are shown to exist and that no weighing up of an ‘overriding public interest’ is provided for in that provision, in contrast with the exceptions referred to in Article 4(2) and (3) of Regulation No 1049/2001.

88      In any event, it should be added that the Commission examined whether there was such an overriding public interest in the present case and concluded that there was not (see paragraph 31 above).

89      In the light of all of the foregoing, it must be held that the applicant has not proved that the Commission applied the exception set out in the first indent of Article 4(1)(a) of Regulation No 1049/2001 incorrectly. As that exception covers all the blanked out parts in the requested documents, there is no need to examine whether the Commission also applied the exceptions set out in Article 4(1)(b) and the first indent of Article 4(2) of that regulation correctly.

90      Consequently, the second plea in law must be rejected as manifestly lacking any foundation in law.

 The first plea, alleging infringement of Article 2(1) of Regulation No 1049/2001

91      The applicant submits that, by refusing to grant him access to the documents covered by his request of 23 October 2008, the Commission infringed the provisions of Article 2(1) of Regulation No 1049/2001.

92      It must be borne in mind that although Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions, such right of access is nevertheless subject, in the light of the regime of exceptions laid down in Article 4 thereof, to certain limits based on reasons of public or private interest (see, to that effect, Case C‑477/10 P Commission v Agrofert Holding [2012] ECR I‑0000, paragraph 53 and the case-law cited). Therefore, as the applicant correctly points out, although Article 2(1) of Regulation No 1049/2001 provides that ‘[a]ny citizen of the Union … has a right of access to documents of the institutions’, the same Article however specifies that it is ‘subject to the principles, conditions and limits defined in [that] Regulation’.

93      Since the request for access was examined in accordance with the first indent of Article 4(1)(a) of Regulation No 1049/2001, it follows that the Parliament did not in any way infringe Article 2(1) of that regulation (see paragraphs 61 to 90 above).

94      Consequently, the first plea must be rejected as manifestly lacking any foundation in law.

 The third plea, alleging infringement of Article 7 of Regulation No 1049/2001

95      In paragraph 51 of the application, the applicant claims that the reply to the initial request is flawed and must be annulled on the ground that it was made before the Commission had examined the requested documents.

96      That plea must be rejected as clearly ineffective, since, as has been held in paragraphs 47 to 49 above and as the Commission correctly maintains in its written pleadings, the action is inadmissible in so far as it is directed against the reply to the initial request.

 The fourth plea, alleging infringement of Article 8 of Regulation No 1049/2001

97      The applicant complains that the Commission took almost six months to respond to his confirmatory application, thus infringing Article 8 of Regulation No 1049/2001, which requires that that kind of application is to be handled promptly.

98      Clearly, as the Commission itself moreover concedes in its written pleadings, the applicant’s confirmatory application was not actually dealt with within the period prescribed by Article 8 of Regulation No 1049/2001. Therefore, following that application, which was registered on 3 December 2008, the Secretariat General of the Commission, by letter of 5 January 2009, in accordance with Article 8(2) of Regulation No 1049/2001, extended the period for replying by 15 working days and informed the applicant that that period would therefore expire on 26 January 2009. However, by email of 26 January 2009, it informed the applicant of its inability to respond to the application within the period thus extended on the ground that it concerned hundreds of documents. By emails of 4 March and 29 April 2009, it again stated that it needed an additional period in order to respond to his confirmatory application.

99      Under Article 8 of Regulation No 1049/2001, the Commission could extend the initial time-limit only once and, on expiry of the extended period, an implicit decision to refuse access was deemed to have been adopted. The time-limit laid down by Article 8(1) of that regulation is mandatory and cannot be extended save in the circumstances provided for in Article 8(2) of the regulation, without depriving that article of all practical effect, since the applicant could not know precisely the date from which he could bring the action or complaint provided for in Article 8(3) of the regulation (see Joined Cases T‑494/08 to T‑500/08 and T‑509/08 Ryanair v Commission [2010] ECR II‑5723, paragraphs 38 and 39 and the case-law cited).

100    In the present case, the Commission’s failure to reply to the confirmatory application within the period prescribed by Article 8 of Regulation No 1049/2001 and, particularly, by the end of the first extension of the period, namely 26 January 2009, must be regarded as an implicit decision to refuse access.

101    Under Article 8(3) of Regulation No 1049/2001, that implicit decision could have been the subject-matter, on the part of the applicant, of Court proceedings in accordance with the provisions of Article 263 TFEU or of a complaint to the European Ombudsman. The applicant did not, however, make use of either of those opportunities, preferring to bring an action for annulment of the contested decision, by which the Commission provided an express and final reply to his confirmatory application and, therefore, implicitly withdrew the implicit decision to refuse access.

102    Those are the only legal consequences to be drawn in the present case from the Commission’s failure to reply to the confirmatory application within the prescribed period. In particular, that fact cannot render the contested decision unlawful in such a way as to justify its annulment.

103    It follows that the present plea must be rejected as clearly ineffective.

104    In the light of all of the foregoing, the action must be dismissed as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law, and there is no need to examine the first objection of inadmissibility formulated by the Commission.

 The application for the adoption of measures of organisation of procedure submitted by the applicant

105    The applicant requests that the Court order the Commission, by way of measures of organisation of procedure, in accordance with Article 64 of the Rules of Procedure of the General Court, to respond to a series of questions, intended, in essence, to specify and supplement the reasons why it took the view that the blanked out parts of the requested documents could not be disclosed.

106    As is apparent from all of the foregoing, the Court has been able to rule on the action on the basis of the forms of order, pleas in law and arguments presented by the parties during the proceedings and in the light of the documents lodged by the parties. The application for the adoption of measures of organisation of procedure submitted by the applicant must therefore be dismissed.

 Costs

107    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

108    Since the applicant has been unsuccessful, he must be ordered to bear his own costs and to pay those of the Commission, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby orders:

1.      The action is dismissed as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law.

2.      Mr Gerald Steinberg shall bear his own costs and pay those incurred by the European Commission.

Luxembourg, 27 November 2012.

E. Coulon

 

       S. Papasavvas

Registrar

 

       President


* Language of the case: English.