JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
13 September 2013 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Studies received by the Commission concerning the transposition of directives on the environment – Partial refusal of access – Exception relating to protection of the purpose of inspections, investigations and audits – Specific and individual assessment – Compatibility with the Aarhus Convention – Overriding public interest – Consequences of exceeding the period for the adoption of an express decision – Extent of the obligation actively to disseminate environmental information)
In Case T‑111/11,
ClientEarth, established in London (United Kingdom), represented by P. Kirch, lawyer,
applicant,
v
European Commission, represented initially by P. Oliver and C. ten Dam, and subsequently by P. Oliver and C. Zadra, acting as Agents,
defendant,
APPLICATION, initially, for annulment of the Commission’s implied decision refusing to grant the applicant access to certain documents on the conformity of the Member States’ legislation with European Union environmental law and then for annulment of the Commission’s subsequent express decision of 30 May 2011 refusing in part access to some of those documents,
THE GENERAL COURT (Sixth Chamber),
composed of H. Kanninen (Rapporteur), President, S. Soldevila Fragoso and G. Berardis, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 10 April 2013,
gives the following
Judgment
Facts
1 The applicant, ClientEarth, is a company limited by guarantee under English law one of whose objects is protection of the environment. On 8 September 2010 ClientEarth submitted to the European Commission’s Directorate General Environment (‘DG Environment’) an application for access to documents 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). That application (‘the initial application’) concerned several documents mentioned in the document titled ‘Management Plan 2010’ of DG Environment, published on its website.
2 By email of 16 September 2010 the Commission acknowledged receipt of the initial application and stated that it had been registered on 14 September 2010.
3 By letter of 29 October 2010 the Commission rejected in part the initial application. The Commission sent to the applicant one of the documents requested and stated that the others were covered by the exceptions provided for in the third indent of Article 4(2) and the first subparagraph of Article 4(3) of Regulation No 1049/2001, relating, respectively, to the protection of the purpose of inspections, investigations and audits and the protection of the decision-making process of the institutions.
4 On 10 November 2010 the applicant submitted, pursuant to Article 7(2) of Regulation No 1049/2001, a confirmatory application asking the Commission to reconsider its position as regards a number of the documents to which access had been refused (‘the confirmatory application’).
5 By letter of 1 December 2010 the Commission informed the applicant that, pursuant to Article 8(2) of Regulation No 1049/2001, the time-limit for replying to the confirmatory application was to be extended by 15 working days.
6 By letter of 15 December 2010 the Commission notified the applicant that it was still not in a position to reply to the confirmatory application.
7 By letter of 20 December 2010 the applicant pointed out to the Commission that the time-limit for replying to the confirmatory application expired on 22 December 2010. The applicant asked the Commission to send to it the requested documents by 22 January 2011 and stated that, if the Commission failed to do so, it would consider bringing an action before the General Court against the Commission’s implied decision to reject the confirmatory application (‘the implied decision’.
8 By application lodged at the Registry of the General Court on 21 February 2011, the applicant brought this action and sought the annulment of the implied decision.
9 On 30 May 2011 the Commission adopted an express decision on the confirmatory application (‘the express decision’), of which the applicant was notified that same day.
10 In the express decision, first, the Commission defined the scope of the confirmatory application. The Commission considered that that application concerned, inter alia, 63 studies, carried out by an external undertaking on behalf of the Commission and received by it in 2009, on the conformity of the legislation of several Member States with European Union environmental law and 8 documents entitled ‘implementation action plans’, produced in 2009 and 2010 in respect of all ‘key directives’.
11 The Commission stated that the confirmatory application did not concern certain documents covered by the initial application and concluded that the applicant was no longer requesting access to those documents.
12 Second, the Commission stated that the documents requested contained environmental information within the meaning of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed at Aarhus on 25 June 1998 (‘the Aarhus Convention’), and noted that the provisions of that convention were applicable to European Union institutions pursuant to Regulation No 1367/2006. As Article 3 of that regulation provides that requests for access to environmental information held by European Union institutions are to be processed in accordance with Regulation No 1049/2001, the Commission considered that the confirmatory application was to be assessed under both those regulations.
13 Third, the Commission divided the documents covered by the confirmatory application into two groups. The first group consisted of 22 of the studies and the 8 action plans mentioned in paragraph 10 above. The Commission granted the applicant full access to those documents, except for the names of the authors of some of the studies. The second group consisted of 41 of the studies referred to in paragraph 10 above (‘the studies at issue’). The Commission granted the applicant partial access to those studies. Specifically, the Commission sent to the applicant, in respect of each of the studies at issue, the cover page, the table of contents, the list of abbreviations used, an annex containing the legislation examined, and the sections headed: ‘Introduction’; ‘Overview of the Legal Framework of the Member State’; and ‘Framework for Transposition and Implementation’. On the other hand, the Commission refused to grant the applicant access, in respect of each of those studies, to the sections headed ‘Summary Datasheet’, ‘Legal Analysis of the Transposing Measures’ and ‘Conclusions’, and an annex containing a ‘Table of concordance’ between the legislation of the Member State concerned and the relevant European Union law.
14 The Commission divided the studies at issue into two categories. The first category comprised one study where the assessment and dialogue with the Member State concerned on the implementation of European Union law had been recently started. The second category comprised 40 studies on which dialogue with the Member States concerned had progressed further.
15 Fourth, the Commission set out three reasons why access to some parts of the studies at issue was refused and why the names of the authors of some of the disclosed studies were withheld.
16 In the first place, the Commission stated that the withheld parts of the contested studies were covered by the exception to the right of access to documents provided for in the third indent of Article 4(2) of Regulation No 1049/2001, namely, in particular, the protection of the purpose of investigations.
17 The Commission stated that those studies were carried out in order to enable it to monitor the transposition of several directives by the Member States and, if necessary, to bring proceedings for failure to fulfil obligations under Article 258 TFEU (‘infringement proceedings’) against those Member States. As regards the study placed in the first category mentioned in paragraph 14 above, the Commission stated that it had not yet reached a conclusion on the transposition of the directive concerned. Disclosure of the data and conclusions contained within that study, which had not yet been verified and on which the Member State in question had not had the opportunity to respond, would have exposed that Member State to possibly unjustified criticism and would have undermined the climate of mutual trust required to assess the implementation of the directive concerned. As regards the studies at issue in the second category mentioned in paragraph 14 above, the Commission stated that, in some cases, it had initiated infringement proceedings against the Members States concerned and that, in other cases, it had not yet decided whether such proceedings should be initiated. Disclosure of the studies at issue would have undermined the climate of mutual trust necessary to resolve disputes between the Commission and the Member States concerned without having to resort to the judicial stage of such proceedings.
18 Next, the Commission stated that the withheld parts of the studies at issue were also covered by the exception to the right of access to documents provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001, concerning the protection of the decision-making process of the institutions.
19 In that regard, the Commission stated that those studies had been carried out at its request for purely internal use in the preliminary stage of an investigation concerning the transposition of European Union law. The Commission added that it was entitled not to endorse the conclusions of those studies, and to use other tools of investigation, including its own internal assessment and information obtained from dialogue with the Member States concerned. The Commission considered that, since it had not yet made any final decision on the conformity of the national legislation with European Union law or on whether it was appropriate to initiate infringement proceedings, a matter in respect of which the Commission had broad discretion, the disclosure sought would have undermined its internal decision-making process, which might thereby have exposed it to undue external pressure.
20 Lastly, the Commission stated that the names of the authors of some of the disclosed studies and some of the studies at issue were protected by the exception to the right of access to documents provided for in Article 4(1)(b) of Regulation No 1049/2001, concerning the protection of the privacy and the integrity of the individual.
21 Fifth, the Commission stated that the exceptions to the right of access to documents provided for in the third indent of Article 4(2) and the first subparagraph of Article 4(3) of Regulation No 1049/2001 must not be applied if there is an overriding public interest justifying disclosure of the documents in question. However, the Commission considered that, in the present case, the public interest was better served by protecting the climate of mutual trust between the Member States and the Commission itself and by protecting the Commission’s discretion to take administrative decisions in relation to possible infringements. Moreover, the Commission stated that the confirmatory application did not contain any arguments capable of demonstrating the existence of an overriding public interest justifying disclosure.
Procedure and forms of order sought
22 As stated in paragraph 8 above, the applicant brought the present action seeking annulment of the implied decision by application lodged at the General Court Registry on 21 February 2011.
23 On 30 May 2011 the Commission lodged its defence. It claimed that, following the adoption of the express decision, the action had become devoid of purpose, since the applicant had no further interest in securing the annulment of the implied decision. The Commission invited the Court to declare that there was no longer any need to adjudicate.
24 By document lodged at the Court Registry on 31 May 2011, the Kingdom of Denmark requested leave to intervene in support of the form of order sought by the applicant. That leave was granted by order of the President of the Eighth Chamber of 14 July 2011.
25 On 29 July 2011 the applicant lodged its reply. It stated that, as the Commission had granted access to the disclosed studies and action plans (see paragraph 13 above), those documents were no longer the subject of the action. The applicant also sought leave to adapt its pleas in law and claims following the adoption of the express decision, in order that the action should now be deemed to be directed against the express decision, in that the Commission had granted to it only partial access to the studies at issue.
26 On 7 November 2011 the Commission lodged its rejoinder. It asked the Court to allow the amendments to the applicant’s pleas in law and claims in the interests of the sound administration of justice and procedural economy.
27 Following changes in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore allocated.
28 By letter received at the Court Registry on 12 March 2013, the Kingdom of Denmark informed the Court that it was withdrawing its application for leave to intervene in support of the forms of order sought by the applicant in this case. By order of the President of the Sixth Chamber of 9 April 2013, the name of the Kingdom of Denmark as an intervener was removed from the Court’s register.
29 Upon hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure. The parties presented oral argument and their answers to the questions put by the Court at the hearing on 10 April 2013.
30 In its application, the applicant claims that the Court should:
– annul the implied decision;
– order the Commission to pay the costs, including the costs of any interveners.
31 In its reply, the applicant asks to be allowed to adapt its pleas in law and claims further to the express decision and claims that the Court should:
– annul the express decision;
– order the Commission to pay the costs.
32 In its defence, the Commission contends that the Court should declare that there is no longer any need to adjudicate on the implied decision following the adoption of the express decision.
33 In its rejoinder, the Commission contends that the Court should:
– permit the amendment of the applicant’s claims and pleas in law;
– dismiss the action;
– order the applicant to pay the costs.
34 At the hearing, the applicant confirmed that its application for annulment was directed at the express decision in that the Commission had partially refused it access to the 41 studies at issue listed in Table 2 in Annex II to that decision.
Law
Adaptation of the applicant’s claims and pleas in law
35 As stated above, the implied decision, which was initially the subject of the application for annulment in the action brought by the applicant, was replaced by the express decision after the lodging of the action. That change led the applicant to adapt its initial claims and the pleas in law in support of those claims. The Commission has not objected to that adaptation.
36 In that regard, it must be recalled that, in accordance with settled case‑law, heads of claim initially directed against a measure which is replaced during the course of proceedings may be regarded as being directed against the replacement measure because the latter constitutes a new factor which entitles the applicant to adapt its heads of claim and pleas in law. In such circumstances, it would be contrary to the principle of the sound administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application to the Court (see Case T‑111/00 British American Tobacco International (Investments) v Commission [2001] ECR II‑2997, paragraph 22 and case‑law cited). The adaptation of the claims and pleas in law should therefore be allowed and the action should be considered as now directed to the partial annulment of the express decision (‘the contested decision’).
Substance
37 Further to the adaptation of its claims and pleas in law, the applicant relies on seven pleas in law in support of its application for the annulment of the contested decision. Those pleas relate to (i) an infringement of Article 8(1) and (2) of Regulation No 1049/2001 in that the Commission unlawfully extended the time-limit for responding to the confirmatory application; (ii) an infringement of Article 4(1), (2) and (4) of the Aarhus Convention, in that that provision does not allow any exception to the right of access to documents designed to protect the purpose of investigations other than those of a criminal or disciplinary nature; (iii) an infringement of the obligation actively to disseminate environmental information stemming from Article 5(3) to (7) of the Aarhus Convention and Article 4(2)(b) of Regulation No 1367/2006; (iv) an infringement of the third indent of Article 4(2) of Regulation No 1049/2001, in that the Commission disregarded the limits attaching to the exception to the right of access to documents laid down by that provision; (v) an infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001, in that the risk that full disclosure of the studies at issue might undermine the Commission’s decision-making process was hypothetical and was not reasonably foreseeable; (vi) an infringement of Article 4(2) in fine and (3) in fine of Regulation No 1049/2001, due to the existence of an overriding public interest justifying that disclosure, and (vii) the serious and recurrent infringement by the Commission of Article 8(1) and (2) of Regulation No 1049/2001 and Article 4(1) of the Aarhus Convention, which requires the adoption of deterrent measures by the General Court.
Preliminary observations
38 The seven pleas submitted by the applicant may be divided into two groups, the first group comprising the second, fourth, fifth and sixth pleas, and the second group comprising the first, third and seventh pleas.
39 In the first group of pleas, the applicant challenges the grounds of the express decision. Thus, in its second and fourth pleas, the applicant disputes the finding in that decision that the withheld information was covered by the exception to the right of access to documents based on the protection of the purpose of investigations. In its fifth plea, the applicant disputes the finding that that information was covered by the exception based on the protection of the decision-making process. In its sixth plea, the applicant claims that, if those exceptions were applicable, the Commission erred in holding that there was no overriding public interest which required the disclosure of the information requested.
40 On the other hand, in the second group of pleas, the applicant submits arguments intended to show that the express decision should be annulled for reasons unrelated to whether the grounds of that decision are vitiated by error. In its first and seventh pleas, the applicant thus claims, in essence, that the express decision was adopted excessively late, which reflects a consistent and reprehensible practice on the part of the Commission. By its third plea, the applicant submits that the Commission, irrespective of the reply it had to make to the confirmatory application, was required actively to disseminate the information requested.
41 It must be observed, first, that the applicant has not claimed that the Commission erred in holding that the names of the authors of some of the studies at issue and some of the disclosed studies were covered by the exception to the right of access to documents provided for in Article 4(1)(b) of Regulation No 1049/2001, relating to the protection of personal data. It is clear therefore that, subject to the observations made by the applicant in relation to the second group of pleas, the applicant is not challenging the Commission’s decision not to disclose those names. That was confirmed by the applicant at the hearing.
42 Next, it must be observed that a European Union institution may take into account cumulatively a number of grounds for refusal set out in Article 4 of Regulation No 1049/2001 in order to assess a request for access to documents held by it (see, to that effect, Case C‑404/10 P Commission v Éditions Odile Jacob [2012] ECR, paragraphs 113 and 114).
43 As stated in paragraphs 16 to 19 above, the Commission held that the studies at issue were covered both by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of the purpose of investigations, and by the exception provided for in the first subparagraph of Article 4(3) of that regulation, relating to the protection of the institutions’ decision-making process. Accordingly, without prejudice to examination of the second group of pleas, if the applicant is successfully to demonstrate that the contested decision is vitiated by an error of such a kind as to justify its annulment, the applicant must establish either, in the context of the second, fourth or fifth pleas, that the Commission erred in holding that it was entitled partially to refuse access to the studies at issue pursuant to each of those exceptions, or, in the context of the sixth plea, that full disclosure of those studies was in any event justified by an overriding public interest.
44 It is appropriate to begin by examining the first group of pleas.
The first group of pleas
45 As stated above, the first group of pleas consists of the second, fourth, fifth and sixth pleas in law. It is appropriate first to examine the fourth plea and, thereafter, the second, fifth and sixth pleas.
– The fourth plea: infringement of the third indent of Article 4(2) of Regulation No 1049/2001 in that the Commission disregarded the limits attaching to the exception laid down by that provision
46 As stated in recital 1 in the preamble to Regulation No 1049/2001, that regulation reflects the intention expressed in the second paragraph of Article 1 of the EU Treaty, which was 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 that regulation, the right of public access to documents of the institutions is related to the democratic nature of those institutions (see Case C‑506/08 P Sweden v MyTravel and Commission [2011] ECR I‑6237, paragraph 72 and case‑law cited).
47 To that end, Regulation No 1049/2001 is intended, as is apparent from recital 4 in its preamble and from Article 1 thereof, to give the fullest possible effect to the right of public access to documents of the institutions (see Sweden v MyTravel and Commission, paragraph 46 above, paragraph 73 and case‑law cited).
48 Admittedly, that right is nonetheless subject to certain limits based on grounds of public or private interest. More specifically, and in accordance with recital 11 in the preamble thereto, Article 4 of Regulation No 1049/2001 provides for a number of exceptions on reliance on which the institutions may refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision. However, since those exceptions derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly (Sweden v MyTravel and Commission, paragraph 46 above, paragraphs 74 and 75).
49 It is apparent from the Court file, read in the light of the parties’ observations, that the studies at issue concern the transposition by 19 Member States of a number of European Union directives relating to protection of the environment, each of the studies at issue concerning a single Member State and a single directive. Further, it is common ground between the parties that those studies were ordered by the Commission in the context of the obligation imposed on it, under Article 17 TEU, to oversee, under the control of the Court of Justice, the application of European Union law. Consequently, it is clear that the studies at issue were not produced to obtain information or for academic purposes, but as targeted instruments designed to detect specific infringements of European Union law. As the Commission correctly states, the objective of those studies is to enable it to assess whether the Member States have correctly transposed the directives concerned and, if necessary, to initiate infringement proceedings against Member States who have failed to fulfil their obligations.
50 It follows from the foregoing that the studies at issue are part of an investigation conducted by the Commission, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.
51 However, it is clear from the case‑law that the fact that a document is related to an investigation, within the meaning of that provision, cannot, by itself, be sufficient ground for the applicability of the exception provided for by that provision, taking into consideration the need to interpret and apply strictly the exceptions mentioned in Article 4(2) of Regulation No 1049/2001. The risk of the protected interest being undermined must be reasonably foreseeable and not purely hypothetical (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑4723, paragraphs 43 and 63).
52 Further, as is apparent from its wording, that exception is not designed to protect investigations as such, but the purpose of those investigations (see, to that effect, Joined Cases T‑391/03 and T‑70/04 Franchet and Byk v Commission [2006] ECR II‑2023, paragraphs 105 and 109 and Case T‑36/04 API v Commission [2007] ECR II‑3201, paragraph 127). In an investigation relating to infringement proceedings, that purpose is to induce the Member State concerned to comply voluntarily with the requirements of the Treaty or, when appropriate, to give it the opportunity to justify its position (see, to that effect, API v Commission, paragraphs 121 and 133 and case‑law cited).
53 As is essentially stated in paragraph 17 above, the Commission indicated, in the contested decision, that the reason why the disclosure of the studies at issue might adversely affect its investigations was that such disclosure might undermine the climate of mutual trust required either for the assessment of the implementation of European Union law, in respect of one study which the Commission had not yet had the opportunity to analyse in sufficient detail, or to resolve disputes between the Commission and the Member States without having to use the judicial phase of the infringement proceedings, in respect of the other studies which the Commission had analysed in detail and on the basis of which, in some cases, the Commission had commenced infringement proceedings and, in other cases, had not yet decided whether such proceedings should be commenced.
54 The applicant claims that those reasons are general and not substantiated. Consequently, those reasons fail adequately to demonstrate the existence of a non-hypothetical risk that the disclosure of the studies at issue would specifically and actually undermine the Commission’s investigations. In particular, if a possible infringement of European Union law were public knowledge, that would not prevent the Commission from continuing an investigation.
55 The applicant adds that the Commission did not explain either what type of pressure might hinder its investigating procedures or whether that pressure would be applied to its own departments or to those of the Member States. According to the applicant, the Member States could, in any event, demonstrate that they are complying with European Union law if they were exposed to unjustified criticism or pressure. Further, the applicant claims that since the Commission did not explain how the disclosure of the studies at issue would specifically and actually undermine its investigations, it has not interpreted strictly the exception invoked.
56 Lastly, the applicant claims that transparency enhances the effectiveness of infringement proceedings by reason of the public pressure on the Member State concerned and should be guaranteed in order to enable citizens to participate in the decision-making process and to provide information to the Commission.
57 The Commission disputes the applicant’s arguments.
58 First, it must be observed that, in accordance with settled case‑law, the Commission may legitimately rely on the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001 in order to refuse access to documents relating to investigations of a possible contravention of European Union law which might lead to the initiation of infringement proceedings or which have in fact led to the initiation of such proceedings. In those circumstances, refusal of access has been considered justified because the Member States concerned are entitled to expect the Commission to observe confidentiality as regards investigations, even where a period of time has elapsed since the closure of those investigations (see API v Commission, paragraph 52 above, paragraph 120 and case‑law cited).
59 In particular, it is clear from the case‑law that the disclosure of documents relating to the investigation stage, during the negotiations between the Commission and the Member State concerned, could undermine the proper conduct of the infringement proceedings inasmuch as its purpose, which is, as stated in paragraph 52 above, to induce the Member State concerned to comply voluntarily with Treaty requirements or, if appropriate, to give it an opportunity to justify its position, could be jeopardised. This requirement of confidentiality remains even after the matter has been brought before the Court of Justice, on the ground that it cannot be ruled out that the discussions between the Commission and the Member State concerned regarding the latter’s voluntary compliance with Treaty requirements may continue during the court proceedings and up to the delivery of the judgment. The preservation of that objective, namely an amicable settlement of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgment, therefore justifies refusal of access to those documents (see API v Commission, paragraph 52 above, paragraph 121 and case‑law cited).
60 It follows from the foregoing that, as the Commission correctly submits, the Commission is entitled to maintain the confidentiality of documents assembled in the course of an investigation relating to infringement proceedings where their disclosure might undermine the climate of trust which must exist, between the Commission and the Member State concerned, in order to achieve a mutually acceptable solution to any contraventions of European Union law that may be identified.
61 It must therefore be held that the Commission was, in principle, entitled to rely on the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 in order to refuse to disclose the studies at issue.
62 That conclusion cannot be invalidated by the applicant’s arguments that, first, citizens have the right to know whether their governments are complying with European Union environmental rules pursuant to the principles of openness and transparency in Article 1 TEU and Article 15 TFEU and, secondly, the Commission is obliged to oversee the application of those rules, to be accountable to citizens on how it performs that task and to make citizens partners in the decision-making process.
63 The second subparagraph of Article 15(3) TFEU provides that the general principles and limits which, on grounds of public or private interest, are to govern citizens’ right of access to documents are to be determined by regulations by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure. Accordingly, Regulation No 1049/2001, adopted on the basis of Article 15(3) TFEU, determines those general principles and limits in relation to the right of access to documents held by the Commission. One of those limits is the exception set out in the third indent of Article 4(2) of that regulation, relating to the protection of the purpose of investigations by the institutions. The applicant cannot therefore rely on general treaty provisions to support an argument that that exception is not applicable.
64 Further, it must be observed that, as has been acknowledged in the case‑law, where an institution is asked to disclose a document, it must assess, in each individual case, whether that document is covered by the exceptions to the right of access set out in Article 4 of Regulation No 1049/2001 (Sweden and Turco v Council, paragraph 51 above, paragraph 35).
65 In that regard, it has been made clear, first, that the examination of a request for access to documents must be specific and individual and must relate to the content of each document referred to in that request and, secondly, that the nature of that examination must be apparent from the reasons stated for the institution’s decision, in relation to all the exceptions mentioned in Article 4(1) to (3) of that regulation on which that decision is based (see, to that effect, Case T‑2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121, paragraphs 69 to 74).
66 As the applicant claims, in essence, the Commission’s examination of the studies at issue was general and abstract. It is not apparent from the contested decision that the Commission made a specific analysis of the precise content of each of the studies at issue in order to decide whether its disclosure was likely to undermine the climate of trust which must exist between the Commission and the Member State concerned. Contrary to what is argued by the Commission, the partial disclosure of those studies does not constitute evidence that they were individually examined, since the disclosed parts of each study are identical.
67 There are however a number of exceptions to the Commission’s obligation to examine specifically and individually the documents to which access has been requested.
68 Such an examination may not be necessary where, owing to the particular circumstances of the individual case, it is obvious that access must be refused or, on the contrary, granted. Such a situation could arise, for example, if certain documents (i) were manifestly covered in their entirety by an exception to the right of access, or (ii) were manifestly accessible in their entirety, or (iii) had already been the subject of a specific, individual assessment by the Commission in similar circumstances (Verein für Konsumenteninformation v Commission, paragraph 65 above, paragraph 75, and API v Commission, paragraph 52 above, paragraph 58).
69 In addition, it is, in principle, open to the institution concerned to base its decisions in that regard, including in the statement of reasons for the decision refusing access, on general presumptions which apply to certain categories of documents, as general considerations of a similar kind are likely to apply to requests for disclosure relating to documents of the same nature, provided that it establishes in each case whether the general considerations normally applicable to a particular type of document are in fact applicable to a specific document which it has been asked to disclose (Sweden and Turco v Council, paragraph 51 above, paragraph 50).
70 Due to the particular circumstances of this case, the Commission was entitled to consider, first, that all the studies at issue fell within the same category of documents and, secondly, that access to that category of documents had to be refused on the basis of the exception invoked (see, to that effect, Case T‑29/08 LPN v Commission [2011] ECR II‑6021, paragraph 121). As the applicant states, it is true that the studies at issue were not produced by the Commission, do not reflect its position, and do not cause the Commission to incur any liability. Nonetheless, the studies were ordered by the Commission as part of the preliminary stage of infringement proceedings and they examine in depth the compatibility of the legislation of the Member States concerned with European Union law. Those studies constitute therefore material which may have an effect on the extent to which the Commission can commence negotiations with those Member States, free from external pressure, with the objective that the Member States comply voluntarily with European Union law.
71 That assessment is confirmed by the principles recognised in the judgment of the Court of Justice in Case C‑139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I‑5885, paragraphs 54 to 62, as interpreted by the General Court in LPN v Commission, paragraph 70 above.
72 In Commission v Technische Glaswerke Ilmenau, the Court of Justice held that, as regards the administrative procedures relating to reviewing State aid, a general presumption of confidentiality such as that mentioned in paragraph 69 above could arise from Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 [EC] (OJ 1999 L 83, p. 1), and from the case‑law relating to the right to consult the documents on the Commission’s administrative file. In that regard, the Court noted that the procedure for reviewing State aid was, in view of its general scheme, a procedure initiated against a Member State, in which only the latter has rights of defence, including the right to have certain documents disclosed to it, unlike the interested parties, who do not have, in that procedure, a right to consult the documents on the Commission’s administrative file. The Court also held that account must be taken of that fact for the purposes of interpreting the exception laid down by the third indent of Article 4(2) of Regulation No 1049/2001. If those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to the documents in the Commission’s administrative file, the system for the review of State aid would be jeopardised.
73 The Court of Justice concluded that, where the activities of the institutions fall within the framework of administrative duties which are specifically allocated to them by Article 88 EC, it was necessary to take account of the fact that interested parties other than the Member State concerned in the procedures for reviewing State aid did not have the right to consult the documents in the Commission’s administrative file, and, therefore, to acknowledge the existence of a general presumption that disclosure of documents in the administrative file might, in principle, undermine the protection of the purpose of investigations, with the result that the institution concerned could itself decide that a specific and individual prior examination of the documents concerned was unnecessary. It remains the case however, according to the Court of Justice, that interested parties retain the right to demonstrate that a given document is not covered by that general presumption or that there is an overriding public interest justifying its disclosure.
74 As regards the review which the Commission is required to carry out in the context of infringement proceedings, the General Court held, in LPN v Commission, paragraph 70 above (paragraph 126), that that review falls within the scope of an administrative duty, in the context of which the Commission has wide discretion and enters into a bilateral dialogue with the Member States concerned. The General Court observed that, by contrast, parties other than those Member States did not have the benefit of specific procedural safeguards compliance with which is subject to effective judicial review.
75 Accordingly, the General Court held that, by analogy with the situation of interested parties in the context of the procedure for the review of State aid, there is a general presumption that disclosure of the documents in the administrative file relating to an investigation of a Member State’s failure to fulfil obligations would, in principle, undermine protection of the purpose of investigations, and consequently that it was sufficient for the Commission to establish whether that general presumption should apply to all the documents concerned, without its necessarily being required to undertake a specific and individual prior examination of the content each of those documents. The General Court then held that in a situation where, when the decision to refuse access was made, the infringement proceedings were ongoing, the Commission was necessarily required to start from the principle that that general presumption applied to the documents concerned in their entirety (LPN v Commission, paragraph 70 above, paragraph 127).
76 In that regard, first, the applicant puts forward a number of arguments intended to demonstrate that the general presumption that the disclosure of the Commission’s ‘administrative file’ relating to a procedure for reviewing State aid would undermine the protection of the purpose of investigations, established by the Court of Justice, in Commission v Technische Glaswerke Ilmenau, paragraph 71 above, flows from the specific rules relating to ‘access to the file’ during the administrative procedure relating to State aid and is applicable only to documents concerning State aid.
77 As the Commission correctly maintains, those arguments are incompatible with what is stated by the General Court in LPN v Commission, paragraph 70 above. They must therefore be rejected.
78 Secondly, the applicant claims that the studies at issue are not part of a ‘file’, since they were produced as part of the preliminary stage preceding infringement proceedings.
79 In that regard, it must be observed that the studies at issue are targeted documents, the purpose of which is the analysis of the transposition by a specific Member State of a specific directive, which are intended to form part of a Commission file relating to that transposition. Where infringement proceedings have already commenced, it cannot be held that those studies are not part of the file relating to those proceedings, since those studies are among the material on which the Commission based its decision to commence those proceedings. As regards studies in respect of which the Commission has not yet initiated infringement proceedings, it is equally necessary to maintain their confidentiality, since once information is in the public domain it cannot be withdrawn when the proceedings are commenced, as the Commission rightly submits.
80 Moreover, it must be recalled that the exception relating to the protection of the purpose of investigations does not apply solely to documents relating to infringement proceedings which have been commenced but also to documents concerning investigations the outcome of which might be such proceedings (see paragraph 58 above).
81 Lastly, the applicant claims that, even if the case‑law of the Court of Justice relating to State aid might be directly transposable to infringement proceedings, the contested decision should be annulled. Unlike the undertaking which was requesting access to documents in the case which gave rise to Commission v Technische Glaswerke Ilmenau, paragraph 71 above, which was unable to demonstrate that there was an overriding public interest, but only relied on its private interest as a recipient of State aid, the applicant claims that it represents an overriding public interest which concerns the entire population of the European Union, namely the protection of the environment.
82 The essence of that argument by the applicant is that the disclosure of the studies at issue was justified by an overriding public interest. The argument must therefore be examined, if appropriate, in the context of the sixth plea in law, relating to the existence of such an interest.
83 It follows from all the foregoing that, subject to examination of the issue referred to in paragraph 82 above, this plea in law must be rejected.
– The second plea in law: infringement of Article 4(1), (2) and (4) of the Aarhus Convention, in that that provision does not allow any exception to the right of access to documents intended to protect the purpose of investigations other than those of a criminal or disciplinary nature
84 It should be noted, as a preliminary point, that, by virtue of Article 216(2) TFEU, where international agreements are concluded by the European Union they are binding on its institutions, and consequently they prevail over acts of the European Union (Case C‑366/10 Air Transport Association of America and Others [2011] ECR I‑13755, paragraph 50).
85 The Aarhus Convention was signed by the Community and subsequently approved by Decision 2005/370. Consequently, the provisions of that convention now form an integral part of the legal order of the European Union (Case C‑240/09 Lesoochranárske zoskupenie [2011] ECR I‑1255, paragraph 30).
86 Article 3(1) of the Aarhus Convention states that each party to the convention is to take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the provisions of the convention relating to, inter alia, the provision of environmental information to the public, in order to establish and maintain a clear, transparent and consistent framework to implement the provisions of the convention. Article 4(1) of the Aarhus Convention states that each party to the convention is to ensure that public authorities make available to the public, within the framework of their national legislation, the environmental information requested from them. Lastly, Article 4(3) and (4) of the Aarhus Convention provide for a number of grounds for refusal of requests for environmental information. The grounds for refusal laid down in Article 4(4) of the convention must, in accordance with the second subparagraph of that provision, be interpreted in a restrictive way taking into account the public interest served by disclosure of the information requested and whether or not the information relates to emissions into the environment.
87 Regulation No 1367/2006 was adopted in order to ensure the application of the requirements of the Aarhus Convention to the institutions and bodies of the European Union. Article 1(1) of that regulation states that its objective is to contribute to the implementation of the obligations arising under that convention. Recital 3 in the preamble to that regulation states that ‘[p]rovisions of [European Union] law should be consistent with [the Aarhus] Convention’.
88 Article 3 of Regulation No 1367/2006 provides that ‘Regulation No 1049/2001 shall apply to any request for access to environmental information held by [European Union] institutions or bodies’. Lastly, Article 6 of Regulation No 1367/2006 contains specific provisions on the application of exceptions to the right to access to documents provided for in Article 4 of Regulation No 1049/2001. Recital 15 in the preamble to Regulation No 1367/2006 states that ‘[w]here Regulation … No 1049/2001 provides for exceptions, these should apply subject to any more specific provisions in this Regulation concerning requests for environmental information’.
89 In this case, the Commission examined the applicant’s request for access in the contested decision in the light of Regulations Nos 1367/2006 and 1049/2001 and, as stated in paragraph 16 above, the Commission relied on the third indent of Article 4(2) of Regulation No 1049/2001 to support its refusal to disclose certain parts of the studies at issue. Further, the Commission stated that Article 6(1) of Regulation No 1367/2006 did not alter that conclusion and pointed out that Regulation No 1367/2006 provided that the exception relating to the protection of the purpose of investigations, in particular those concerning possible infringements of European Union law, could be applied with regard to documents containing environmental information, where disclosure was not justified by an overriding public interest.
90 Consequently, the Commission did not carry out its examination of the confirmatory application, as regards the exception relating to the protection of the purpose of investigations, by relying directly on the Aarhus Convention, but by relying on the provisions of Regulations Nos 1049/2001 and 1367/2006. Nonetheless, by this plea in law, the applicant claims that the conclusion reached by the Commission following examination is incompatible with Article 4(1), (2) and (4) of the Aarhus Convention, which, according to the applicant, is sufficient reason for the contested decision to be annulled on that point.
91 It must be borne in mind that the legality of an act of the European Union may be affected by the fact that that act is incompatible with an international agreement. Where it is claimed before the Courts of the European Union that an act of the European Union is incompatible with rules of international law, those courts may examine the issue provided that two conditions are satisfied. First, the European Union must be bound by those rules. Secondly, the Courts of the European Union can examine the legality of an act of the European Union in the light of a provision of an international treaty only where the nature and the broad logic of the latter do not preclude this, and, moreover, where that provision can be seen, as regards its content, to be unconditional and sufficiently precise (Air Transport Association of America and Others, paragraph 84 above, paragraphs 51 to 54).
92 It must be observed that the European Union is bound by the Aarhus Convention. However, as regards the grounds for refusal of a request for access to environmental information, that convention cannot be seen, as regards its content, to be unconditional and sufficiently precise within the meaning of the case‑law referred to in paragraph 91 above.
93 As stated above, Article 3 of the Aarhus Convention provides that each party to the convention is to take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the provisions in the convention, to establish and maintain a clear, transparent and consistent framework to implement the provisions of the convention.
94 Further, it follows from reading Article 4(1) and (4) of the Aarhus Convention together that all parties to that convention have a wide discretion in respect of how to organise the ways in which environmental information requested from public authorities is made available to the public.
95 The applicant claims that the application in this case by the Commission of the relevant provisions of Regulations Nos 1367/2006 and 1049/2001, and in particular the third indent of Article 4(2) of Regulation No 1049/2001, is incompatible with the provisions of Article 4(4)(c) of the Aarhus Convention. However, Article 4(4)(c) is not sufficiently precise to be directly applicable, at least in relation to the institutions of regional economic integration referred to in Article 2(d) of the Aarhus Convention.
96 The Aarhus Convention, and in particular Article 4(4)(c) thereof, was manifestly designed to be applicable principally to the authorities of the States which are contracting parties thereto and uses concepts appropriate to them, as is apparent from the reference to the framework of national legislation in Article 4(1) thereof. On the other hand, the convention does not take into account the specific features which are characteristic of institutions of regional economic integration, which may nonetheless accede to the convention. In particular, there is nothing in Article 4(4)(c), or in the other provisions of the Aarhus Convention, which makes it possible to interpret the concepts used in that provision and to determine whether an investigation relating to infringement proceedings can be covered by such concepts.
97 In the absence of any specific information for that purpose, it cannot be held that the Aarhus Convention prevents the European Union legislature from providing for an exception to the principle of access to the documents of the institutions relating to the environment where those documents pertain to infringement proceedings, which form part to the constitutional mechanisms of European Union law, as established by the Treaties (Case T‑59/09 Germany v Commission [2012] ECR, paragraphs 63 and 64).
98 Further, it would be illogical if the Aarhus Convention were to provide for exceptions for the benefit of some contracting parties, namely the States, while precluding the application of similar exceptions by other contracting parties, namely, institutions of regional economic integration, which include the European Union for the purposes of that convention.
99 It follows from all the foregoing that the applicant’s argument that the third indent of Article 4(2) of Regulation No 1049/2001, as applied by the Commission in the contested decision, is incompatible with Article 4(4) of the Aarhus Convention, in that that provision does not allow any exception to the right of access to documents intended to protect the purpose of investigations other than those of a criminal or disciplinary nature, cannot be upheld.
100 Consequently, the second plea in law must be rejected.
101 The fourth and the second pleas in law having been rejected, it must be held that the applicant has failed to demonstrate that the Commission committed, in this case, an error in refusing to disclose the studies at issue in order to protect the purpose of its investigations. Since that ground was, in itself, capable of justifying the Commission’s refusal to disclose to the applicant the withheld parts of the studies at issue, there is therefore no need to examine whether the Commission erred in holding that it was also entitled to refuse that disclosure in order to protect its decision-making process, as is claimed by the applicant in its fifth plea in law. It is however necessary to examine the arguments submitted by the applicant in its sixth plea in law, to the effect that disclosure of the studies at issue was in any event justified by an overriding public interest.
– The sixth plea in law: infringement of Article 4(2) in fine and (3) of Regulation No 1049/2001, due to the existence of an overriding public interest justifying disclosure of the documents requested
102 The applicant states that the exceptions to the right of access to documents must be interpreted in accordance with the principles laid down in Article 1 TEU, under which the public must be granted the widest possible access to institutions’ documents. Further, the applicant claims that the Commission can accordingly not refuse access to a document in order to protect an interest covered by one of the exceptions laid down in Article 4(2) of Regulation No 1049/2001 unless the Commission, first, determines that there is no overriding public interest justifying the disclosure of that document, secondly, weighs the various competing interests and, thirdly, gives a detailed statement of reasons, as the Commission failed to do in the contested decision.
103 The applicant adds that European citizens have a vested interest in knowing whether, and to what extent, European Union environmental legislation is complied with at national level, so that, when necessary, they can insist that that legislation is actually applied, by reason of its primacy and its direct effect, by the national courts and also request that the national legislation be brought into compliance with European Union law. Further, transparency intensifies the interest of citizens in the policies of the institutions and the extent of their participation, which in its turn strengthens the democratic character of the European Union and contributes to the protection of the principles of openness and transparency laid down in Articles 1 and 11 TEU and in Article 15 TFEU.
104 The Commission disputes the applicant’s arguments.
105 It must be observed that the fact that citizens have the opportunity to obtain appropriate environmental information and genuine opportunities to participate in the decision-making process in relation to the environment plays an essential role in a democratic society. As is indicated in the preamble to the Aarhus Convention, improved access to information and increased public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns.
106 The public’s right to receive that information constitutes the expression of the principle of transparency, to which the provisions of Regulation No 1049/2001, as a body, give effect, as is apparent from recital 2 in the preamble to that regulation, according to which openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to them, and contributes to strengthening the principle of democracy.
107 Nonetheless, it follows from the case‑law that the overriding public interest, referred to in Article 4(2) in fine and the first subparagraph of Article 4(3) in fine of Regulation No 1049/2001, which is capable of justifying the disclosure of a document which undermines or seriously undermines the legal interests protected by the exceptions provided for in those provisions must, as a rule, be distinct from the abovementioned principles which underlie that regulation (API v Commission, paragraph 52 above, paragraph 97).
108 Admittedly, the fact that, as is the case here, a party requesting access does not invoke any public interest distinct from the abovementioned principles does not automatically imply that it is unnecessary to weigh up the competing interests. The invocation of those same principles may, in the light of the particular circumstances of the case, be so pressing that it outweighs the need to protect the documents in question (API v Commission, paragraph 52 above, paragraph 97).
109 However, that is not the case here. The applicant has not presented any argument capable of demonstrating that, in relation to the studies at issue, the invocation of those principles raises, having regard to the particular circumstances of this case, any issue of particularly pressing concern. The applicant has done no more than refer to non-specific considerations unrelated to the particular circumstances of this case, namely that citizens have a right to be informed of the extent to which the Member States are complying with European Union environmental law and to participate in the procedure for making decisions. Yet non-specific considerations cannot provide an appropriate basis for establishing that the principle of transparency represents in a specific case an issue of particularly pressing concern which prevails over the reasons justifying the refusal to disclose the documents requested (see, to that effect, Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others v API and Commission [2010] ECR I‑8533, paragraph 158).
110 This plea in law must therefore be rejected.
The second group of pleas
111 It is appropriate, first, to examine together the first and seventh pleas in law, relating, in essence, to the infringement of Article 8(1) and (2) of Regulation No 1049/2001 and of Article 4(1) of the Aarhus Convention, in that the Commission is alleged unlawfully to have extended the time-limit for a reply to a confirmatory application and, thereafter, the third plea in law, relating to the breach of the obligation actively to disseminate environmental information stemming from Article 5(3) to (7) of the Aarhus Convention and Article 4(2)(b) of Regulation No 1367/2006.
– The first and seventh pleas in law: in essence, infringement of Article 8(1) and (2) of Regulation No 1049/2001 and of Article 4(1) of the Aarhus Convention, in that the Commission unlawfully extended the time-limit for a reply to a confirmatory application, which is claimed to be a regular practice on the part of the Commission which should be deterred
112 Article 8(1) of Regulation No 1049/2001 provides as follows:
‘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 230 [EC] and 195 [EC], respectively.’
113 Article 8(2) of that regulation provides:
‘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 that detailed reasons are given.’
114 The applicant claims that the adoption of the contested decision was in breach of those provisions. The confirmatory application concerns neither a particularly long document nor a large number of documents, and it is not of an exceptional character. Even in such cases, the time-limit for a reply to that application can be extended only by 15 working days. It is settled case‑law that that time-limit is mandatory. Nonetheless, the Commission adopted the contested decision more than five months after the expiry of that time-limit.
115 The Commission accepts that it exceeded the time-limit for a reply to the confirmatory application, but contends that that failure, in accordance with the case‑law, does not entail that the contested decision is unlawful.
116 At the hearing, the applicant accepted that in accordance with settled case‑law a failure to comply with the time-limit for reply to a confirmatory application does not entail the invalidity of the decision taken by the institution concerned with regard to that application. Nonetheless, the applicant decided to pursue these pleas in law, and the arguments submitted in their support, in order to draw attention to what it considers to be the Commission’s regular practice, namely that the Commission systematically ignores the mandatory time-limits for reply which are imposed on it.
117 In that regard, it must be observed that the time-limit laid down in Article 8(1) of Regulation No 1049/2001 is mandatory and cannot be extended other than in the circumstances provided for in Article 8(2) of that regulation, without depriving that article of all practical effect, since the applicant could no longer know precisely the date from which he could bring the action or complaint provided for in Article 8(3) of that regulation (see Joined Cases T‑494/08 to T‑500/08 and T‑509/08 Ryanair v Commission [2010] ECR II‑5723, paragraph 39 and case‑law cited). As the applicant submits, even where the circumstances provided for in Article 8(2) of Regulation No 1049/2001 are satisfied, that time-limit may be extended only by 15 working days.
118 However, as the applicant itself accepts, the expiry of the time-limits laid down in Article 8 of Regulation No 1049/2001 does not have the effect of depriving the Commission of the power to adopt an express decision (Joined Cases T‑355/04 and T‑446/04 Co‑Frutta v Commission [2010] ECR II-1, paragraph 56, and Ryanair v Commission, paragraph 117 above, paragraph 50).
119 If the legislature had intended silence on the part of the institutions to bring about such an effect, specific reference would have been made in the legislation concerned. In the field of access to documents, the legislature specified the consequences of failure to comply with the time-limits laid down in Article 8(1) and (2) of Regulation No 1049/2001, by providing, in Article 8(3) thereof, that such failure on the part of the institution is to give the applicant the right to institute judicial proceedings. In that context, the consequences which the applicant wishes to attribute to the Commission’s failure to comply with the time-limits laid down in Article 8(1) and (2) of Regulation No 1049/2001 must be considered to be disproportionate. There is no legal principle which results in the administration losing its power to respond to an application, even outside the time-limits laid down for that purpose. The mechanism of an implied refusal decision was established in order to counter the risk that the administration would choose not to reply to an application for access to documents and escape any review by the courts, not to render unlawful every decision which is late. On the other hand, the administration is required, in principle, to provide – even late – a reasoned response to every application by a citizen. That approach is consistent with the function of the mechanism of the implied refusal decision, which is to enable citizens to challenge inaction on the part of the administration with a view to obtaining a reasoned response from it (Co‑Frutta v Commission, paragraph 118 above, paragraphs 57 to 59).
120 It must therefore be held that the lawfulness of the contested decision is not affected by the fact that the period allowed for the response to the confirmatory application was exceeded.
121 Since the applicant itself accepted, at the hearing, that that conclusion was correct, there is no need to examine the additional arguments to the contrary which the applicant submitted in its reply.
122 Lastly, the applicant claims that the contested decision was made after the expiry of the ‘15 day time-limit set out in … Article 4(1) of the Aarhus Convention’. However, that provision does not include any indication that the authority which has received a request for access to a document is subject to a time-limit within which it must decide on the request. Even if the applicant intended to rely on the failure to comply with Article 4(2) of that convention, which fixes as two months the maximum period of time within which the environmental information must be disclosed to the persons who have requested it where that disclosure concerns lengthy documents or complex information, the failure by the Commission to comply with that time-limit in this case does not affect the lawfulness of the contested decision, for the same reasons as those set out in paragraphs 117 to 119 above.
123 The first and seventh pleas in law must therefore be dismissed.
– The third plea in law: infringement of the obligation actively to disseminate environmental information stemming from Article 5(3) to (7) of the Aarhus Convention and Article 4(2)(b) of Regulation No 1367/2006
124 Article 4(2) of Regulation No 1367/2006 provides as follows:
‘The environmental information to be made available and disseminated shall be updated as appropriate. In addition to the documents listed in Article 12(2) and (3) and in Article 13(1) and (2) of Regulation (EC) No 1049/2001, the databases or registers shall include the following:
(a) texts … of [European Union] legislation on the environment or relating to it, and of policies, plans and programmes relating to the environment;
(b) progress reports on the implementation of the items referred to under (a) where prepared or held in electronic form by [European Union] institutions or bodies;
…’
125 Article 5(3) of the Aarhus Convention provides:
‘Each Party shall ensure that environmental information progressively becomes available in electronic databases which are easily accessible to the public through public telecommunication networks. Information accessible in this form should include:
…
(c) as appropriate, policies, plans and programmes on or relating to the environment, and environmental agreements …’
126 Article 5(5) of the Aarhus Convention provides:
‘Each Party shall take measures within the framework of its legislation for the purpose of disseminating, inter alia:
(a) legislation and policy documents such as documents on strategies, policies, programmes and action plans relating to the environment, and progress reports on their implementation, prepared at various levels of government …’
127 The applicant claims, in essence, that, pursuant to the abovementioned provisions and Article 1(2) and Article 11 TEU, the Commission was under an obligation actively to disseminate the studies at issue.
128 In that regard, suffice it to observe that both the Aarhus Convention and Regulation No 1367/2006 provide for public access to environmental information either on request or as part of active dissemination by the authorities and institutions concerned. However, since authorities and institutions may refuse a request for access to information where that information falls within the scope of a number of exceptions, it necessarily follows that they are under no obligation actively to disseminate that information. Were matters otherwise, the exceptions concerned would cease to serve any useful purpose, which is manifestly incompatible with the spirit and the letter of the Aarhus Convention and Regulation No 1367/2006.
129 This plea in law must therefore be rejected.
130 In the light of all the foregoing, the action must be dismissed in its entirety.
Costs
131 Under Article 87(3) of its Rules of Procedure, the Court may order the costs to be shared or the parties to bear their own costs if each party succeeds on some and fails on other heads, or where the circumstances are exceptional.
132 In this case, the Commission, in the course of the proceedings, gave access to a substantial part of the documents which the applicant had requested in the confirmatory application and the refusal of access to which had caused this action to be brought. Having regard to those exceptional circumstances, the parties must be ordered to bear their own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders ClientEarth and the European Commission each to bear their own costs.
Kanninen | Soldevila Fragoso | Berardis |
Delivered in open court in Luxembourg on 13 September 2013.
[Signatures]