ORDER OF THE GENERAL COURT (Fifth Chamber)
8 July 2013 (*)
(Access to documents of the institutions – Document held by the Commission concerning European Union energy policy – Implied refusal of access – Express decision adopted after the action was brought – No need to adjudicate)
In Case T‑56/13,
ClientEarth, established in London (United Kingdom),
Stichting BirdLife Europe, established in Zeist (Netherlands),
represented by O. Brouwer, lawyer,
applicants,
v
European Commission, represented by F. Clotuche-Duvieusart, acting as Agent,
defendant,
APPLICATION for the annulment of the Commission’s implied decision to refuse the applicants access to a document concerning European Union energy policy,
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The two applicants are charitable organisations. ClientEarth’s mission is inter alia to promote the enhancement, conservation and protection of the environment as well as to provide information on all matters relating to the law, practice and administration of justice in connection with the environment. Stitching BirdLife Europe is part of a global partnership of conservation organisations and strives to conserve birds, their habitats and global biodiversity.
2 On 1 August 2012, the applicants submitted to the Commission an application for access to the latest draft of a literature review on the so-called ‘carbon debt’ of bioenergy derived from biomass commissioned by the Directorate-General Joint Research Centre of the European Commission (DG-JRC). This document was requested under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) 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).
3 This application was registered by the Commission on 6 August 2012.
4 On 24 August 2012, DG-JRC informed the applicants that it was not in a position to complete the handling of the application within the time-limit of 15 working days and extended the time-limit by a further 15 working days on the basis of Article 7(3) of Regulation No 1049/2001.
5 On 17 September 2012, DG-JRC informed the applicants that it was in the process of finalising the literature review requested and it would be ready by the end of the month of September. DG-JRC proposed to provide the applicants with the final version instead of a draft.
6 By letter of 8 October 2012, the applicants submitted to the Secretary-General of the Commission a confirmatory application for access to the document as the DG-JRC had still not transmitted the draft or the final literature review.
7 On 9 October 2012, DG-JRC acknowledged receipt of the confirmatory application and informed the applicants that they would receive a response within 15 working days.
8 On 15 October 2012, DG-JRC informed the applicants that it was not entitled to take a decision regarding the release of the literature review and that their application had been reassigned to the Commission’s Directorate-General Energy.
9 On 30 October 2012, the Secretary-General of the Commission informed the applicants that the Commission had not been able to take a final decision. As a result, it extended the time-limit for the confirmatory request by 15 working days in accordance with Article 8(2) of Regulation No 1049/2001.
10 On 21 November 2012, the Secretary-General of the Commission informed the applicants that it was still not in a position to provide the applicants with a final reply although the extended time-limit expired on that date.
11 By letter of 21 December 2012, the applicants warned the Secretary-General of the Commission that it intended to initiate court proceedings against the Commission in relation to the Commission’s implied decision to refuse their request for access to the document.
Facts subsequent to the bringing of the action
12 By letter of 26 March 2013, the Secretary-General of the Commission adopted a decision with regard to the applicants’ confirmatory application in which it granted them access to the requested document and explained the reasons for its delay. A copy of the requested document was enclosed with this letter.
Procedure and forms of order sought
13 By application lodged at the Registry of the General Court on 30 January 2013, the applicants brought the present action against the Commission’s implied decision deemed to have been taken on 22 November 2012 refusing access to a document (‘the implied decision’).
14 By separate document lodged at the Court Registry on 15 April 2013, the Commission submitted an application for a ruling that there is no need to adjudicate under Article 113 of the Court’s Rules of Procedure by reason of the adoption of the express decision. The applicants lodged their observations on that application on 5 June 2013.
15 In their application, the applicants claim that the Court should:
– annul the implied decision;
– order the Commission to pay the costs.
16 In its application for a ruling that there is no need to adjudicate, the Commission claims that the Court should:
– rule that there is no longer any need to adjudicate on the action;
– decide on the costs.
17 In their observations for a ruling that there is no need to adjudicate, the applicants claim that the Court should:
– declare that there is no longer any need to adjudicate;
– order the Commission to pay the costs.
Law
18 Under Article 113 of the Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it.
19 In the present case, the General Court considers that it is sufficiently informed by the documents in the file to give a decision without taking further steps in the proceedings.
20 The Commission contends that on 26 March 2013 it took an express decision with regard to the confirmatory application of 8 October 2012, giving the applicants access to the final version of the requested document. It argues that it withdrew the implied decision by adopting the express decision and that an action seeking the annulment of the implied decision has therefore become devoid of purpose.
21 The applicants do not dispute that, given that they have now received access to the document initially requested from the Commission, there is no longer a need for the General Court to adjudicate on their application for the annulment of the implied decision.
22 Since the applicants have been granted full access to the requested document in the course of the annulment proceedings, it must be held that the dispute is devoid of purpose and that there is therefore no longer any need to adjudicate (order of the General Court of 6 September 2012 in Case T-180/10 Nickel Institute v Commission, not published in the ECR, paragraph 20). In the light of that full access, the applicants and the Commission both agree that the applicants no longer have any interest in annulling the implied decision.
23 Consequently, it must be held that there is no longer any need to adjudicate on the present action.
Costs
24 Under Article 87(6) of its Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the General Court.
25 In view of the factual circumstances characterising the present case and, in particular, given that the Commission manifestly exceeded the time-limits under Articles 7(1) and (3) and 8(1) and (2) of Regulation No 1049/2001 in default of exceptional justifying circumstances, with the result that the applicants, in order to safeguard their rights, had no choice other than to bring an action for annulment against the implied decision, the Commission must be ordered to bear its own costs and to pay those incurred by the applicants.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. The European Commission shall bear its own costs and pay those incurred by ClientEarth and Stitching BirdLife Europe.
Luxembourg, 8 July 2013.