ORDER OF THE GENERAL COURT (Seventh Chamber)
20 November 2013 (*)
(Access to documents – Regulation (EC) No 1049/2001– Documents relating to the carrying out of an industrial project in an area protected under Directive 92/43/EEC – Documents originating from a Member State – Objection on the part of the Member State – Decision to grant access after the withdrawal of the objection by the Member State – Legal interest in bringing proceedings – No need to adjudicate)
In Case T‑362/08 RENV,
IFAW Internationaler Tierschutz-Fonds gGmbH, established in Hamburg (Germany), represented by S. Crosby, Solicitor,
applicant,
supported by
Kingdom of Denmark, represented initially by J. Bering Liisberg, B. Weis Fogh and V. Pasternak Jørgensen, and subsequently by J. Bering Liisberg, B. Weis Fogh and C. Thorning, acting as Agents,
by
Republic of Finland, represented by J. Heliskoski, acting as Agent,
and by
Kingdom of Sweden, represented by K. Petkovska and A. Falk, acting as Agents,
interveners,
v
European Commission, represented by P. Costa de Oliveira, acting as Agent,
defendant,
APPLICATION for the annulment of the decision of the Commission of 19 June 2008 refusing to grant the applicant access to a document sent to the Commission by the German authorities in connection with a procedure for the declassification of a site protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7),
THE GENERAL COURT (Seventh Chamber),
composed, at the time of the deliberation, of A. Dittrich (Rapporteur), President, I. Wiszniewska-Białecka and M. Prek, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, IFAW Internationaler Tierschutz-Fonds gGmbH, is a non-governmental organisation active in the field of the protection of animal welfare and nature conservation.
2 Having received a request from the Federal Republic of Germany on the basis of the second subparagraph of Article 6(4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), the Commission of the European Communities delivered, on 19 April 2000, an opinion in favour of the carrying out of an industrial project on the Mühlenberger Loch site, an area protected under that directive. The project consisted in the expansion of the company D’s plant for the purposes of the final assembly of the Airbus A3XX.
3 By letter of 20 December 2001 to the Commission, the applicant requested access to various documents received by the Commission in connection with the examination of the abovementioned industrial project, namely the correspondence originating from the Federal Republic of Germany, the City of Hamburg (Germany) and the German Chancellor.
4 Taking the view that Article 4(5) 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) prohibited it from disclosing the documents in question, the Commission adopted, on 26 March 2002, a decision refusing the applicant access to certain documents which it had received in the course of the procedure at the end of which it had delivered its opinion of 19 April 2000.
5 By application lodged at the Registry of the General Court on 4 June 2002, the applicant brought an action for the annulment of the Commission’s decision of 26 March 2002.
6 By judgment of 30 November 2004 in Case T‑168/02 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR II‑4135, the General Court dismissed that action as unfounded.
7 On 10 February 2005 the Kingdom of Sweden, an intervener in Case T‑168/02, cited in paragraph 6 above, lodged an appeal before the Court of Justice against the judgment delivered by the General Court in that case.
8 By judgment of 18 December 2007 in Case C‑64/05 P Sweden v Commission [2007] ECR I‑11389, the Court of Justice set aside the judgment in IFAW Internationaler Tierschutz-Fonds v Commission, cited in paragraph 6 above, and annulled the Commission’s decision of 26 March 2002.
9 Following the judgment in Sweden v Commission, cited in paragraph 8 above, the applicant, by letter of 13 February 2008 addressed to the Commission, repeated its request for access to the documents received by that institution in connection with the examination of the Mühlenberger Loch project and originating from the German authorities.
10 By letter of 20 February 2008, the Commission acknowledged receipt of the applicant’s letter of 13 February 2008.
11 On 26 March 2008, the applicant asked the Commission to reply to its request of 13 February 2008.
12 By letter of 7 April 2008, the Commission informed the applicant that consultation with the German authorities was under way regarding disclosure of the documents requested.
13 On 9 April 2008, the applicant once again asked the Commission to reply to its request of 13 February 2008 and to do so before 22 April 2008.
14 As no reply was received from the Commission by that date, the applicant made a confirmatory application by letter of 29 April 2008.
15 On 19 May 2008 the Commission wrote to the applicant, acknowledging receipt of the confirmatory application and stating that a reply would be given to the applicant within the period prescribed by Regulation No 1049/2001.
16 On 19 June 2008 the Commission adopted a decision on the applicant’s confirmatory application (‘the contested decision’), which was communicated to the applicant on the same day. By that decision, the Commission disclosed all the documents requested by the applicant, namely eight documents originating from the City of Hamburg and the Federal Republic of Germany, with the exception of a letter of 15 March 2000 sent by the German Chancellor to the President of the Commission (‘the German Chancellor’s letter’), as the German authorities objected to disclosure of that document.
Procedure before the General Court and the Court of Justice and forms of order sought
17 By application lodged at the Registry of the General Court on 28 August 2008, the applicant brought the present action for annulment of the contested decision.
18 By letters lodged at the Registry of the General Court on 9 January, 18 June and 29 June 2009 respectively, the Republic of Finland, the Kingdom of Sweden and the Kingdom of Denmark sought leave to intervene in the present proceedings in support of the form of order sought by the applicant. The Republic of Finland was granted leave to intervene by order of the President of the Eighth Chamber of the General Court of 5 March 2009 and the Kingdom of Sweden and the Kingdom of Denmark were granted leave to intervene by orders of the President of the Eighth Chamber of the General Court of 12 August 2009.
19 By judgment of 13 January 2011 in Case T‑362/08 IFAW Internationaler Tierschutz-Fonds v Commission [2011] ECR II‑11, the General Court dismissed the action.
20 By application lodged at the Registry of the Court of Justice on 16 March 2011, the applicant appealed against the judgment of 13 January 2011 in IFAW Internationaler Tierschutz-Fonds v Commission, cited in paragraph 19 above.
21 By judgment of 21 June 2012 in Case C‑135/11 P IFAW Internationaler Tierschutz-Fonds v Commission [2012] ECR I‑0000 (‘the judgment on appeal’), the Court of Justice set aside the judgment of 13 January 2011 in IFAW Internationaler Tierschutz-Fonds v Commission, cited in paragraph 19 above, on the ground that the General Court had erred in law by considering that it was in a position to carry out the review required of it without itself consulting the document which the Commission had refused to disclose (judgment on appeal, paragraph 76).
22 Since the state of the proceedings did not permit judgment to be given in the matter, the Court referred the case back to the General Court for it to give judgment, after having sight of the German Chancellor’s letter, on the application brought before it by the applicant for the annulment of the contested decision (judgment on appeal, paragraph 79) and reserved the costs.
23 The case was assigned to the Seventh Chamber of the General Court.
24 The parties were requested to lodge their statements of written observations in accordance with Article 119(1) of the Rules of Procedure of the General Court. The main parties complied with that request within the prescribed period unlike the interveners.
25 At the applicant’s request, by way of a measure of inquiry pursuant to Article 65 of the Rules of Procedure, the General Court, by order of 7 January 2013, ordered the Commission to produce the German Chancellor’s letter, stating that it would not be communicated to the other parties. The Commission complied with that measure of inquiry within the prescribed period.
26 Upon hearing the report of the Judge-Rapporteur, the General Court (Seventh Chamber) decided to open the oral procedure.
27 By letter lodged at the Registry of the General Court on 28 June 2013, the Commission stated that, after the German authorities had withdrawn their objection to the disclosure of the German Chancellor’s letter, it transmitted that document to the applicant on 27 June 2013. According to the Commission, the action had therefore become devoid of purpose.
28 By document lodged at the Registry of the General Court on 10 July 2013, the applicant stated that, on account of the Commission’s decision to grant access to the German Chancellor’s letter, there was no need to adjudicate on the action.
29 By letter lodged at the Registry of the General Court on 25 July 2013 the Commission submitted its observations on the applicant’s letter of 10 July 2013. By document lodged at the Registry of the General Court on 29 July 2013, the applicant submitted its observations on the Commission’s letter of 28 June 2013. The interveners did not submit observations on the letters of the Commission and the applicant of 28 June and 10 July 2013 within the prescribed period.
30 The oral procedure was closed on 17 September 2013.
31 In its observations of 29 July 2013, the applicant claims that the Court should:
– declare that the action has become devoid of purpose and that there is no need to adjudicate;
– order the Commission to pay the costs.
32 In its observations of 25 July 2013, the Commission contends that the Court should:
– declare that the action has become devoid of purpose and that there is no need to adjudicate;
– order each party to bear its own costs in respect of Cases T‑362/08 and C‑135/11 P;
– order the applicant to pay the costs in Case T‑362/08 RENV.
Law
33 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.
34 In the present case, the Court finds that it has sufficient information from the documents in the case-file and has decided to give a decision on the action without taking further steps in the proceedings.
35 Given that the Commission transmitted the German Chancellor’s letter to the applicant on 27 June 2013, both the applicant and the Commission request that the General Court declare that the action has become devoid of purpose and that there is no need to adjudicate on it.
36 Accordingly, the General Court holds that there is no need to adjudicate on the action.
Costs
37 In the judgment on appeal, cited in paragraph 21 above, the Court of Justice reserved the costs. It is therefore for the General Court to decide, in the present order, on all the costs relating to the various proceedings, in accordance with Article 121 of the Rules of Procedure.
38 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 General Court. Furthermore, under Article 87(4), the Member States which have intervened in the proceedings are to bear their own costs.
39 In the present case, it must be held that by the transmission of the German Chancellor’s letter to the applicant, the latter finally obtained what it had requested from the Commission by its letter of 20 December 2001. Furthermore, it must be pointed out that the objection on the part of the Federal Republic of Germany, pursuant to Article 4(5) of Regulation No 1049/2001, to the disclosure of the document in question must be attributed to the Commission. That provision is procedural in nature and deals with the process of adoption of a European Union decision (judgment on appeal, cited in paragraph 21 above, paragraph 53).
40 In such circumstances and without there being any need to examine whether the Commission was right in refusing to grant access to the German Chancellor’s letter by the contested decision, the Commission must be ordered to bear its own costs and to pay those incurred by the applicant before the General Court and the Court of Justice. The Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden must bear their own costs before the General Court and the Court of Justice.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. There is no need to adjudicate on the action.
2. The European Commission shall bear its own costs and pay those incurred by IFAW Internationaler Tierschutz-Fonds gGmbH, both before the General Court and before the Court of Justice.
3. The Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden shall bear their own costs, both before the General Court and before the Court of Justice.
Luxembourg, 20 November 2013.