Language of document : ECLI:EU:T:2018:12

ORDER OF THE GENERAL COURT (Fourth Chamber)

15 January 2018 (*)

(Access to documents — Regulation (EC) No 1049/2001 — Documents held by the ECHA — Request relating to documents and to the identity of an initial requestor of access to information of a registrant of substances under Regulation (EC) No 1907/2006 — Partial refusal of access — Withdrawal of the decision refusing access — No need to adjudicate)

In Case T-762/16,

ArcelorMittal Belval & Differdange SA, established in Esch‑sur‑Alzette (Luxembourg),

ThyssenKrupp Steel Europe AG, established in Duisburg (Germany),

represented by H. Scheidmann and M. Kottmann, lawyers,

applicants,

v

European Chemicals Agency (ECHA), represented initially by M. Heikkilä, C. Buchanan and E. Maurage, then by M. Heikkilä, C. Buchanan and W. Broere, acting as Agents, and by G. Gilmore, Barrister,

defendant,

APPLICATION based on Article 263 TFEU and seeking annulment of Decision ATD/52/2016 of the ECHA of 26 September 2016, notified to the applicants on 28 September 2016, which granted partial access to the requested documents regarding an earlier application for access to documents held by the ECHA,

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín and I. Reine (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

 Background to the dispute

1        The applicants, ArcelorMittal Belval & Differdange SA and ThyssenKrupp Steel Europe AG, are registrants of substances under Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1).

2        The dispute arises from a request submitted by a third party (‘the initial requestor’) for access to the applicants’ registration data under Article 118 of Regulation No 1907/2006, notified to the applicants on 9 December 2015.

3        The European Chemicals Agency (ECHA) granted partial access to that data.

4        By application of 1 July 2016, the applicants in turn sought access to the file of the administrative procedure at issue and, in particular, to all documents relating to the request submitted by the initial requestor, with the exception of the documents sent to the latter.

5        By decision ATD/52/2016 of 19 August 2016, after consulting the initial requestor, the ECHA granted the applicants partial access to the documents at issue. As regards the identity of the initial requestor, the ECHA considered that it could not be disclosed pursuant to the first indent of Article 4(2) 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), because that would have damaged the initial requestor’s commercial interests.

6        On 8 September 2016, the applicants made a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001.

7        By its Decision ATD/52/2016 of 26 September 2016 (‘the contested decision’), the ECHA confirmed its initial position to grant only partial access to the documents requested and, therefore, not to disclose the identity of the initial requestor.

 Procedure and forms of order sought

8        By application lodged at the Court Registry on 31 October 2016, the applicants brought the present action.

9        The applicants claim that the Court should:

–        annul the contested decision;

–        in the alternative, annul Decision ATD/52/2016 of the ECHA of 19 August 2016, in so far as their application is rejected;

–        order the ECHA to pay the costs.

10      The ECHA contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

11      By letter lodged at the Court Registry on 8 March 2017, the European Medicines Agency (EMA) sought leave to intervene in the present proceedings in support of the ECHA.

12      By letter lodged at the Court Registry on 14 July 2017, the ECHA requested the Court to declare that the application for annulment had become devoid of purpose and that there was no longer any need to rule on it following the withdrawal, after the action was brought, of the contested decision and its replacement by the adoption of a new decision. In its new decision of 24 May 2017, the ECHA disclosed a new version of the documents requested by the applicants, including the identity of the initial requestor.

13      The ECHA also requested the Court to order the applicants to pay the costs.

14      In their observations of 6 September 2017 on the application for a declaration that there is no need to adjudicate submitted by the ECHA, the applicants agreed with that application and requested that the ECHA be ordered to pay the costs.

 Law

15      Under Article 130(2) and (7) of its Rules of Procedure, if a party so requests, the Court may declare that the action has become devoid of purpose and that there is no longer any need to adjudicate. In the present case, the ECHA having applied for a declaration that the action has become devoid of purpose and that there is no need to adjudicate, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

16      In this respect, it should be noted that the object of the present action is an application for annulment of the contested decision, by which the ECHA in part refused the applicants access to the documents requested. However, after the action was brought, the ECHA withdrew the contested decision and adopted a new decision by which it granted the applicants complete access to all the documents requested.

17      In those circumstances, it must be held, as the parties agree, moreover, that the present action has become devoid of purpose and that, consequently, there is no longer any need to adjudicate on it (see, to that effect, judgment of 9 September 2011, LPN v Commission, T‑29/08, EU:T:2011:448, paragraph 57, and order of 15 January 2016, TMG Landelijke Media and Willems v Commission, T‑189/15, not published, EU:T:2016:22, paragraph 16).

18      It follows from all the foregoing considerations that there is no longer any need to adjudicate on the present action or, consequently, on the application for leave to intervene made by the EMA.

 Costs

19      Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court.

20      In the present case, it must be noted that the disappearance of the purpose of the proceedings is the result of the ECHA’s decision to withdraw the contested decision after the present action was brought and, by a new decision, to grant the applicants access to the documents requested.

21      In those circumstances, the ECHA must be ordered to bear its own costs and to pay those incurred by the applicants.

22      Furthermore, pursuant to Article 144(10) of the Rules of Procedure, the EMA must bear its own costs relating to the application for leave to intervene.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby orders:

1.      There is no longer any need to adjudicate on the action.

2.      There is no longer any need to adjudicate on the application for leave to intervene made by the European Medicines Agency (EMA).

3.      The European Chemicals Agency (ECHA) shall, in addition to bearing its own costs, pay those incurred by ArcelorMittal Belval & Differdange SA and ThyssenKrupp Steel Europe AG.

4.      The EMA shall bear its own costs relating to the application for leave to intervene.

Luxembourg, 15 January 2018.

E. Coulon

 

H. Kanninen

Registrar

 

President


*      Language of the case: English.