ORDER OF THE GENERAL COURT (First Chamber)
6 September 2012 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Classification, packaging and labelling of certain nickel carbonate compounds as dangerous substances – Directives 2008/58/EC and 2009/2/EC – 30th and 31st adaptations to technical progress of Directive 67/548/EEC – Partial refusal of access – Action for annulment – No need to adjudicate)
In Case T‑180/10,
Nickel Institute, established in Toronto (Canada), represented initially by K. Nordlander, lawyer, and H. Pearson, Solicitor, and subsequently by K. Nordlander,
applicant,
supported by
Republic of Finland, represented by J. Heliskoski and M. Pere, acting as Agents,
and by
Kingdom of Sweden, represented by A. Falk, K. Petkovska, C. Meyer-Seitz and S. Johannesson, acting as Agents,
interveners,
v
European Commission, represented by P. Oliver and P. Costa de Oliveira, acting as Agents,
defendant,
APPLICATION for annulment of the decision of the European Commission of 8 February 2010 (reference SG.E3/HP/psi – Ares(2010)65824) concerning the refusal to grant Nickel Institute full access to certain internal documents, in particular to opinions of the Commission’s Legal Service, drawn up in the context of two consecutive procedures which resulted in the classification of, inter alia, certain nickel carbonate compounds in Annex I to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234),
THE GENERAL COURT (First Chamber),
composed of J. Azizi (Rapporteur), President, I. Wiszniewska-Białecka and S. Frimodt Nielsen, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 This case concerns an application by Nickel Institute for annulment of the decision of the European Commission of 8 February 2010 (reference SG.E3/HP/psi – Ares(2010)65824) (‘the contested decision’), concerning refusal to grant it full access to certain internal documents, in particular to opinions of the Commission’s Legal Service, drawn up in the context of two consecutive procedures which resulted in the classification of, inter alia, certain nickel carbonate compounds in Annex I to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234). Those classifications were adopted, first, by Commission Directive 2008/58/EC of 21 August 2008 amending, for the purpose of its adaptation to technical progress, for the 30th time, Directive 67/548 (OJ 2008 L 246, p. 1), and, second, by Commission Directive 2009/2/EC of 15 January 2009 amending, for the purpose of its adaptation to technical progress, for the 31st time, Directive 67/548 (OJ 2009 L 11, p. 6).
2 By separate letters of 25 September 2009, Nickel Institute requested the Commission to grant it access to ‘any documents giving the opinion of [its] Legal Service on the draft 30th and 31st adaptations to technical progress to Directive 67/548/EEC, including … follow up documents, or comments thereon’. Moreover, by two identical letters of the same date, Nickel Institute requested the Commission to grant it access to ‘any opinions received from a directorate-general [(DG)] or service of the Commission, including in particular those of the [DG] for Enterprise and Industry and the DG for Trade, in response to any inter-service consultation carried out in respect of the draft 30th and 31st adaptation to technical progress to Directive 67/548/EEC, including … follow up documents, or comments thereon’.
3 The Secretariat-General of the Commission registered those requests for access on 28 September 2009 under the references ‘GESTDEM 2009/3819’ and ‘GESTDEM 2009/3820’, concerning documents of the Legal Service and of the DG ‘Environment’ respectively.
4 By email of 21 October 2009, the Commission’s Legal Service asked Nickel Institute to clarify its request for access by specifying the meaning of the phrase ‘follow-up documents or comments thereon’. Nickel Institute replied to that request by email of 22 October 2009, indicating that by those documents and comments it meant, for example, ‘any supplementary, revised or amended opinion of the Legal Service on the draft 30th or 31st adaptations to technical progress to Directive 67/548, or any documents or correspondence commenting on or discussing any opinion of the Legal Service on the draft 30th or 31st adaptations to technical progress to Directive 67/548’.
5 In his letter of 10 November 2009 concerning the request for access registered under reference ‘GESTDEM 2009/3819’, the Director-General of the Commission’s Legal Service identified nine documents linked to the draft 30th adaptation to technical progress of Directive 67/548. He granted full access to two of those documents and only partial access to the remaining seven documents. As regards the parts of the documents disclosure of which had been refused, the Director-General noted, essentially, that these were covered by the exception relating to ‘the protection of legal advice’ within the meaning of the second 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). As regards the draft 31st adaptation to technical progress of Directive 67/548, the Director-General indicated that the Legal Service had given its approval only by the IT system CIS-net, and that, consequently, there was no document corresponding to Nickel Institute’s request for access.
6 By letter of 2 December 2009, Nickel Institute submitted a confirmatory application relating to the request for access concerning the Legal Service’s documents and requested full access to the seven documents at issue as well as ‘[e]xplicit written confirmation that no document, record or correspondence exists in the Commission’s possession in which the Legal Service gives its view on the [31st adaptation to technical progress of Directive 67/548] …’.
7 With regard to Nickel Institute’s confirmatory application concerning the Legal Service’s documents, the Commission confirmed, in the contested decision, first, the assessment set out in the letter of 10 November 2009 and, second, the fact that the Legal Service had given its approval on the draft 31st adaptation to technical progress of Directive 67/548 without additional comments or attachments. However, it specified that document No 9 of the Legal Service referred in actual fact also to the draft 31st adaptation to technical progress of Directive 67/548, which the Legal Service had mistakenly omitted to mention (points 2 and 3 of the contested decision).
Procedure and forms of order sought by the parties
8 By application lodged at the Court Registry on 16 April 2010, Nickel Institute brought the present action.
9 By documents lodged at the Court Registry on 16 July and 5 August 2010 respectively, the Republic of Finland and the Kingdom of Sweden applied for leave to intervene in the present proceedings in support of the form of order sought by Nickel Institute. By order of 8 September 2010, the President of the Third Chamber of the General Court granted those applications for leave to intervene. The Republic of Finland and the Kingdom of Sweden submitted their statements in intervention on 24 and 25 November 2010 respectively. Nickel Institute and the Commission submitted their observations on those statements in intervention on 21 and 24 January 2011 respectively.
10 By letter of 23 January 2012, the Commission submitted to the General Court a ‘Commission … decision of 19 January 2012’ granting Nickel Institute full access to the documents requested, essentially on the ground that the cases in dispute concerning the nickel carbonate compounds had been finally resolved by the European Union Courts as well as, in an annex, the full versions of those documents.
11 By letter of 16 February 2012, in response to the measures of organisation of procedure of the General Court under Article 64 of its Rule of Procedure, the Commission requested that the General Court, first, rule that there is no longer any need to adjudicate on the present action on the ground that all of the documents requested had been disclosed to Nickel Institute and, second, order Nickel Institute to pay the costs.
12 By letter of 28 February 2012, in response to the subsequent measures of organisation of procedure of the General Court under Article 64 of the Rules of Procedure, Nickel Institute requested the General Court to proceed to measures of inquiry, under Article 65 of the Rules of Procedure, to verify and confirm that no email or other correspondence existed in which the Commission’s Legal Service, inter alia Mr Oliver, expressed views on the proposed classifications of nickel carbonate compounds. Moreover, Nickel Institute indicated its agreement with a decision of the General Court that there is no longer any need to adjudicate provided that the Commission disclose in full the Legal Service’s opinions on the draft 31st adaptation to technical progress of Directive 67/548.
13 By letter of 27 March 2012, Nickel Institute, first, indicated that its request for access was not devoid of purpose and that it retained an interest in bringing proceedings against the contested decision, and, second, disputed the Commission’s conclusions on costs.
14 By letter of 30 March 2012, the Commission acknowledged that, by reason of an ‘administrative error’, it had failed to identify, in the case-file, an exchange of emails between Mr Oliver and the competent services which preceded the approval of the Legal Service, as introduced in the IT system CIS-net. The Commission also attached to its letter a copy of that approval as well as a copy of the aforementioned exchange of emails.
15 By letter of 30 May 2012, in response to a new measure of organisation of procedure of the General Court under Article 64 of the Rules of Procedure, the Commission confirmed that it had disclosed all of the documents requested to Nickel Institute.
16 By letter of 29 June 2012, Nickel Institute gave its agreement to a decision of the General Court that there is no longer any need to adjudicate and requested that the Commission be ordered to pay the costs, as it had failed to disclose the documents covered by the request for access as a consequence of an administrative error and improper filing of the administrative file.
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 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.
19 As has been recognised by settled case-law, the objective of the dispute, as established by the action at first instance, must continue, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (judgments of the Court of Justice in Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42, and of the General Court in Case T‑45/06 Reliance Industries v Council and Commission [2008] ECR II‑2399, paragraph 35).
20 Since Nickel Institute was granted full access to the requested documents in the course of the present proceedings, it must be held that the dispute is devoid of purpose and that there is therefore no longer any need to adjudicate (see, to that effect, judgments in Case T‑84/03 Turco v Council [2004] ECR II‑4061, paragraphs 28 to 30, and in Case T‑29/08 LPN v Commission [2011] ECR II‑0000, paragraph 56). In the light of that full access, Nickel Institute stated that it agreed with the General Court’s decision that there was no need to adjudicate and that it no longer had an interest in challenging the contested decision.
21 Consequently, it is necessary to find that there is no longer any need to adjudicate on the present action.
Costs
22 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.
23 In the particular circumstances of this case, the General Court takes the view that the Commission must be ordered to bear its own costs as well as half of the costs incurred by Nickel Institute. As the Commission acknowledged in the course of the proceedings, it failed to identify, in its case-file, during the administrative procedure, by reason of an ‘administrative error’, an exchange of emails between Mr Oliver and the competent services which preceded the approval of the Legal Service, given by means of the IT system CIS-net. The Commission thus demonstrated clear negligence in its management and investigation of its administrative file and disclosed only at a very late stage the exchange of emails between the services concerned and Mr Oliver, even though the latter is also its legal representative before the General Court in the present case.
24 In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the Republic of Finland and the Kingdom of Sweden, which have intervened in the present proceedings, must bear their own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. The European Commission shall bear its own costs as well as half of the costs incurred by Nickel Institute.
3. Nickel Institute shall bear half of its own costs.
4. The Republic of Finland and the Kingdom of Sweden shall bear their own respective costs.
Luxembourg, 6 September 2012.