ORDER OF THE GENERAL COURT (Seventh Chamber)
8 April 2011 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Implied refusal of access – Express decision adopted after the action was brought – No need to adjudicate)
In Case T‑291/10,
Anne Martin, residing in Brussels (Belgium), represented by U. O’Dwyer, Solicitor,
applicant,
supported by
Kingdom of Denmark, represented by S. Juul Jørgensen, acting as Agent,
intervener,
v
European Commission, represented by P. Costa de Oliveira and C. ten Dam, acting as Agents,
defendant,
APPLICATION for annulment of the Commission’s implied decision of 20 April 2010 refusing the applicant access to documents in the file relating to State aid N 654/2008, notified by the United Kingdom of Great Britain and Northern Ireland on 19 December 2008, in favour of Short Brothers plc,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Prek (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 22 December 2009, the applicant, Ms Anne Martin, submitted to the European Commission an application for access to all documents in the Commission’s file relating to State aid N 654/2008, notified by the United Kingdom of Great Britain and Northern Ireland on 19 December 2008, in favour of Short Brothers plc.
2 By letter of 18 January 2010, the Commission Directorate-General (‘DG’) for Competition informed the applicant that, because of the significant number of documents requested, the deadline for reply had been extended by 15 working days until 11 February 2010.
3 By letter of 11 February 2010, the DG for Competition refused access to all of the documents requested, with the exception of a letter from the Commission to the United Kingdom confirming an extension of the deadline for the submission of information concerning the State aid at issue.
4 On 4 March 2010, the applicant lodged a confirmatory application for access to documents under Article 7(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) with the Secretariat-General of the Commission, which acknowledged receipt on the same day.
5 On 24 March 2010, the Secretariat-General of the Commission informed the applicant that the handling of her request involved the assessment of very voluminous documents originating from a Member State and other third parties, and that the analysis of those documents, together with the need to consult the Member State concerned, could not be completed within the time-limits set by Regulation No 1049/2001, which was to expire on 25 March 2010. On the basis of Article 6(3) of that regulation, it proposed to the applicant a solution whereby it would provide the applicant with a first partial reply as soon as it had received the first results of the consultations and completed its examination of the documents concerned, and would take a final decision when all the documents had been examined. It stated that the final decision would probably not be taken within the time-limits set by Regulation No 1049/2001.
6 By letter of 25 March 2010, the applicant informed the Secretariat-General of the Commission that she did not accept its proposed solution, noting that that would compromise her right to challenge the Commission’s decision before the General Court.
7 By letter of 19 April 2010, the Secretariat-General of the Commission confirmed that, as the application covered a large number of documents, the process of examining the various documents could not be completed within the time-limit set by Regulation No 1049/2001. It also specified that the period for responding to the applicant’s request was to expire on 20 April 2010 and that failure to respond by that date would constitute an implied refusal to grant access to the requested documents, against which an action before the General Court could be brought until 30 June 2010.
8 By email of 17 June 2010, the Secretariat-General of the Commission informed the applicant that a response was being prepared but that it could not give a precise indication of the date on which the Commission’s final reply would be sent to the applicant.
9 On 30 July 2010, the Commission adopted a decision confirming its refusal to grant, to the applicant, access to documents in the file relating to the State aid at issue (‘the express decision’). The express decision was sent on the same day, by email, to the applicant.
Procedure and forms of order sought by the parties
10 By application lodged at the Court Registry on 26 June 2010, the applicant brought this action.
11 The applicant claims that the Court should:
– annul the Commission’s implied decision of 20 April 2010, refusing to grant her access to documents in the file relating to State aid N 654/2008, notified by the United Kingdom on 19 December 2008, in favour of Short Brothers (‘the contested decision’);
– order the Commission to comply with Regulation No 1049/2001 within the time-limits that the Court considers appropriate;
– order the Commission to pay the costs, even if in the course of these proceedings the Commission were to send to the applicant all or some of the requested documents, with the effect of making this action wholly or partly devoid of purpose.
12 On 17 September 2010 the Kingdom of Denmark applied for leave to intervene in support of the form of order sought by the applicant.
13 In its defence, lodged on 28 September 2010, the Commission contends that the Court should:
– declare the application inadmissible insofar as it requests the Court to issue directions to the Commission;
– declare as devoid of purpose the action against the contested decision;
– order the applicant to pay the costs.
14 By order of 15 November 2010, the President of the Seventh Chamber of the Court granted the Kingdom of Denmark leave to intervene in the proceedings in support of the form of order sought by the applicant.
15 On 19 November 2010, the applicant lodged an application for an order that there is no need to adjudicate in which she claims that the Court should:
– declare the action devoid of purpose;
– order the Commission to pay the costs.
16 The Commission and the Kingdom of Denmark were invited by the Court to submit their observations on the applicant’s application seeking a declaration that the action is devoid of purpose. By letter of 22 December 2010, the Commission indicated that it did not have any observations and that it requested the Court to make an appropriate order as to costs. The Kingdom of Denmark did not reply to that invitation.
Law
17 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.
18 In this case, the Court considers itself sufficiently informed by the documents in the file to give a decision without taking further steps in the proceedings.
19 The purpose of this action is the annulment of the contested decision and a direction to the Commission to comply with Regulation No 1049/2001 within the time-limits that the Court considers appropriate.
20 The Commission has argued that, on 30 July 2010, it adopted the express decision and that the adoption of that express decision caused of the applicant to lose her interest in obtaining the annulment of the contested decision.
21 The applicant submits that the Commission’s reasoning should be agreed with and thus considers that there is no need to adjudicate on this action which is now devoid of purpose.
22 Thus, both the applicant and the Commission request the Court to declare that this action has become devoid of purpose.
23 Accordingly, it is not necessary to rule on the admissibility of the second head of claim seeking an order to the Commission to comply with Regulation No 1049/2001, and the Court finds that there is no need to adjudicate on this action.
Costs
24 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court. Moreover, under the first subparagraph of Article 87(4) of the Rules of Procedure, the Member States which intervened in the proceedings are to bear their own costs.
25 In this case, as is apparent from paragraph 20 above, the Commission notes that the applicant lost her interest in obtaining the annulment of the contested decision by reason of the adoption of the express decision.
26 Moreover, the applicant cannot be criticised for having brought an action for annulment against the contested decision, despite the assurances given by the Commission that an express decision would be issued as soon as possible.
27 Accordingly the Commission must be ordered to bear its own costs and to pay the costs incurred by the applicant.
28 The Kingdom of Denmark is to bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. There is no need to adjudicate on this action.
2. The European Commission shall bear its own costs and pay the costs incurred by Ms Anne Martin.
3. The Kingdom of Denmark shall bear its own costs.
Luxembourg, 8 April 2011.