ORDER OF THE GENERAL COURT (Seventh Chamber)
20 September 2018 (*)
(Access to documents — Document relating to a decision refusing a third party full access to trilogue tables relating to the proposal for a regulation of the European Parliament and of the Council on Europol and repealing Decisions 2009/371/JHA and 2005/681/JHA — Refusal to grant access — Second indent of Article 4(2) of Regulation (EC) No 1049/2001 — Exception for the protection of court proceedings — Disclosure after the action had been brought — No longer any interest in bringing proceedings — No need to adjudicate)
In Case T‑421/17,
Päivi Leino-Sandberg, residing in Helsinki (Finland), represented by O. Brouwer and S. Schubert, lawyers,
applicant,
v
European Parliament, represented by C. Burgos, S. Alves and I. Anagnostopoulou, acting as Agents,
defendant,
APPLICATION pursuant to Article 263 TFEU seeking annulment of Decision A(2016) 15112 of the European Parliament of 3 April 2017 refusing to grant the applicant access to Decision A(2015) 4931 of the Parliament of 8 July 2015 addressed to Mr Emilio De Capitani,
THE GENERAL COURT (Seventh Chamber),
composed of V. Tomljenović, President, E. Bieliūnas and A. Kornezov (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Ms Päivi Leino-Sandberg, a Professor of International and European Law at the University of Eastern Finland, submitted to the European Parliament a request for access to documents of that institution in the context of two research projects which she is leading relating to transparency in trilogues. In that context, she specifically requested to have access to Decision A(2015) 4931 of the European Parliament of 8 July 2015 refusing to grant Mr Emilio De Capitani full access to documents LIBE‑2013‑0091‑02 and LIBE‑2013‑0091‑03 (‘Decision A(2015) 4931’ or ‘the requested document’). By that decision, the Parliament refused Mr De Capitani access to the fourth column of two tables drawn up in the context of the trilogues that were ongoing at the time.
2 Decision A(2015) 4931 was the subject of an action for annulment brought by Mr De Capitani, lodged at the Registry of the General Court on 18 September 2015 as Case T‑540/15. In the meantime, Mr De Capitani published that document by uploading it onto the following website: www.free-group.eu/2015/07/12/eus-laws-are-like-sausages-you-should-never-watch-them-being-made/.
3 By Decision A(2016) 15112 of 3 April 2017 (‘the contested decision’) the Parliament refused the applicant access to the requested document on the ground that, as the requested document was being contested by its addressee before the Court and the judicial proceedings were still in progress, its disclosure would undermine the protection of court proceedings provided for by 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).
4 By judgment of 22 March 2018, De Capitani v Parliament (T‑540/15, EU:T:2018:167), the Court annulled Decision A(2015) 4931.
Procedure and forms of order sought
5 On 6 July 2017, the applicant brought an action against the contested decision.
6 On 16 October 2017, the Parliament lodged its defence at the Court Registry.
7 On the same day, the Republic of Finland sought leave to intervene in support of the form of order sought by the applicant.
8 On 26 October 2017, the Kingdom of Sweden sought leave to intervene in support of the form of order sought by the applicant.
9 On 14 November 2017, by a measure of organisation of procedure adopted pursuant to Article 89 of its Rules of Procedure, the Court, first, invited the applicant to justify her assertion that she had received notification of the contested decision on 26 April 2017 and, second, requested that she indicate whether she had obtained satisfaction by the fact that she was able to consult the requested document on the website referred to in paragraph 2 above.
10 On 30 November 2017, the applicant’s response to the measure of organisation of procedure referred to in paragraph 9 arrived at the Court Registry.
11 By decision of 6 December 2017, the President of the Seventh Chamber of the Court set a deadline of 22 January 2018 for the submission of the reply and requested that the applicant focus on questions of admissibility in that document.
12 The applicant lodged the reply at the Court Registry on 22 January 2018.
13 On 9 March 2018, the Parliament lodged the rejoinder at the Court Registry. As the rejoinder contained an application for a declaration that there is no need to adjudicate, the Court Registry informed the parties, by letters of 15 March 2018, that that application could not be processed as it stood, given that it had not been lodged by separate document.
14 On 27 March 2018, by separate document lodged with the Court Registry pursuant to Article 130(2) of the Rules of Procedure, the Parliament lodged an application for a declaration that there is no need to adjudicate.
15 On 20 April 2018, the applicant lodged at the Court Registry observations on the application for a declaration that there is no need to adjudicate.
16 The applicant claims that the Court should:
– dismiss the application for a declaration that there is no need to adjudicate;
– annul the contested decision;
– order the Parliament to pay ‘the applicant’s costs ... including the costs of any intervening parties’.
17 The Parliament claims that the Court should:
– declare that there is no need to adjudicate;
– in the alternative, dismiss the action as inadmissible;
– in the further alternative, dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
18 Under Article 130(2) and (7) of its Rules of Procedure, if a party so requests, the General Court may declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it. In the present case, as the Parliament requested that the Court declare that the action has become devoid of purpose and that there is no longer any need to adjudicate, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.
The Parliament’s application for a declaration that there is no need to adjudicate
19 According to the Parliament’s application for a declaration that there is no need to adjudicate, it follows from the publication of the requested document in its entirety on the internet by the addressee that the applicant no longer has any legal interest in bringing proceedings. The action, it submits, has therefore become devoid of purpose. The Parliament notes that, even though the applicant was not aware of that circumstance when the action was brought, she has, however, certainly been informed of it since the Court’s measure of organisation of procedure referred to in paragraph 9 above and she now has access to the requested document on the internet.
20 The applicant maintains her previous form of order and pleas in law and considers that she still has a legal interest in bringing proceedings.
21 It is settled case-law that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure (judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 41; orders of 9 November 2011, ClientEarth and Others v Commission, T‑120/10, not published, EU:T:2011:646, paragraph 46, and of 30 April 2015, EEB v Commission, T‑250/14, not published, EU:T:2015:274, paragraph 14).
22 An applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible (judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 42; orders of 9 November 2011, ClientEarth and Others v Commission, T‑120/10, not published, EU:T:2011:646, paragraph 47, and of 30 April 2015, EEB v Commission, T‑250/14, not published, EU:T:2015:274, paragraph 15).
23 The interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be likely, if successful, to procure an advantage for the party bringing it (judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 43; orders of 9 November 2011, ClientEarth and Others v Commission, T‑120/10, not published, EU:T:2011:646, paragraph 49, and of 30 April 2015, EEB v Commission, T‑250/14, not published, EU:T:2015:274, paragraph 17).
24 If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision on the merits cannot bring him any benefit (judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 44; orders of 9 November 2011, ClientEarth and Others v Commission, T‑120/10, not published, EU:T:2011:646, paragraph 50, and of 30 April 2015, EEB v Commission, T‑250/14, not published, EU:T:2015:274, paragraph 18).
25 In the present case, it must be held that the reasons which led the applicant to bring her action are summarised thus, inter alia in paragraph 2 of the application, and are referred to again, in essence, in paragraph 3 of her observations on the application for a declaration that there is no need to adjudicate:
‘The case brought by Mr De Capitani is the first case addressed by the Court that relates to the publicity of the so-called four column documents, which are used as a basis of trilogue negotiations, and is thus of a crucial importance for the Applicant’s research.’
26 In the present case, the parties agree that Mr De Capitani, the addressee of the requested document, himself made a full version of that document available to the public on the internet. In addition, in its grounds for its judgment of 22 March 2018, De Capitani v Parliament (T‑540/15, EU:T:2018:167), the Court set out at length the content of the requested document.
27 In that regard, it should be noted that the Court has previously held that an action for the annulment of a decision refusing access to documents no longer has any purpose when the documents in question have been made accessible by a third party and the applicant can access them and use them in a way which is as lawful as if he had obtained them as a result of his application under Regulation No 1049/2001 (judgments of 3 October 2012, Jurašinović v Council, T‑63/10, EU:T:2012:516, paragraph 24, and of 15 October 2013, European Dynamics Belgium and Others v EMA, T‑638/11, not published, EU:T:2013:530, paragraph 73; see also, to that effect, order of 11 December 2006, Weber v Commission, T‑290/05, not published, EU:T:2006:381, paragraphs 41 and 42).
28 That case-law applies a fortiori in the present case given that a full version of the requested document was made accessible by the addressee of the document himself, with the effect that there is no doubt that the applicant can use it in an entirely legal manner for the purposes of her university work.
29 The judgments of 6 March 1979, Simmenthal v Commission (92/78, EU:C:1979:53), and of 17 June 1998, Svenska Journalistförbundet v Council (T‑174/95, EU:T:1998:127), cited by the applicant, do not affect that conclusion. With regard to the first of those judgments, it must be noted that it did not relate to the right to access documents. Moreover, it must be held that the Court of Justice simply indicated in that judgment that, even where a decision issued in favour of competitors other than the applicant in the context of an invitation to tender has been fully implemented, the applicant retains an interest in seeing that decision annulled. Therefore, the situation is completely different from that in the present case with regard to, inter alia, the economic interest of the applicant in having the Court of Justice annul the decision at issue delivered in favour of its competitors, such interest being absent in the present case.
30 With regard to the judgment of 17 June 1998, Svenska Journalistförbundet v Council (T‑174/95, EU:T:1998:127), it must be held that, in that case, the Council of the European Union, supported by the French Republic, had submitted that when the Swedish authorities made the documents in question available to the applicant, they infringed EU law and the fact that those documents had been brought into the public domain as a result of an act that is contrary to EU law should therefore preclude the applicant from bringing an action in that case. Although the Court did indeed find that the fact that those documents had ‘been brought into the public domain’ did not deprive the applicant of its interest in the annulment of a decision refusing access to documents (judgment of 17 June 1998, Svenska Journalistförbundet v Council, T‑174/95, EU:T:1998:127, paragraphs 56 and 69), that conclusion must be read in the context of the lingering doubt as to the lawfulness of the disclosure at issue. If the disclosure of the document or documents at issue was made in such a way that doubts as to its lawfulness arise, the applicant retains an interest in the annulment of a decision refusing access to documents, as it cannot use those documents in a way that is as lawful as if they had been obtained as a result of an application made pursuant to Regulation No 1049/2001, within the meaning of the case-law cited in paragraph 27 above.
31 Further, in the judgment of 22 March 2011, Access Info Europe v Council (T‑233/09, EU:T:2011:105, paragraphs 36 and 37), which was also cited by the applicant, the Court concluded that the applicant still had an interest in having the decision refusing access annulled, notwithstanding the fact that the document in question had been disclosed, by pointing out, inter alia, that the document was disclosed by a third party who had failed to comply with the rules applicable to public access to the documents at issue.
32 The applicant relies on that judgment in that it applies the case-law which states that she may retain an interest in seeking the annulment of an act of an EU institution in order to prevent its alleged unlawfulness from recurring in the future (see judgment of 22 March 2011, Access Info Europe v Council, T‑233/09, EU:T:2011:105, paragraph 35 and the case-law cited).
33 However, in accordance with that case-law, that interest in bringing proceedings can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances which have given rise to the action brought by the applicant (see judgment of 22 March 2011, Access Info Europe v Council, T‑233/09, EU:T:2011:105, paragraph 35 and the case-law cited). That is not the position in the present case. The Parliament’s refusal set out in the contested decision was based on the exception relating to the ground of the protection of court proceedings, within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001, for so long as such proceedings are pending, as the Parliament observed that the requested document had a relevant link with the ongoing judicial proceedings in the case that gave rise to the judgment of 22 March 2018, De Capitani v Parliament (T‑540/15, EU:T:2018:167) and that the context of the request for access was characterised by intense debates in blogs and views that were likely to influence its own position in the case. It must therefore be held that the Parliament’s refusal to grant access was specific to the case and of an ad hoc nature, and, namely, that the requested document was the express subject of an application for annulment that was still pending before the Court when the contested decision was adopted and formed part of a particular context. Thus, it does not appear that the alleged unlawfulness is likely to reoccur in the future outside of the specific circumstances of the present case.
34 In addition, the applicant maintains that she has an interest in ensuring that the Parliament does not refuse ‘timely’ access to the requested document. However, in the present case, the applicant does not provide evidence that the timing of the access to the requested document has had any effect whatsoever on the specific interest on which she relies. Neither her request for access, nor her application, nor her reply, nor her answer to the measure of organisation referred to in paragraph 9 above, nor her observations on the application for a declaration of no need to adjudicate contain specific evidence to that effect, with the result that the access to the requested document by the action of its addressee does not appear, on a temporal level, to be devoid of interest for the applicant.
35 The applicant also maintains that, in a situation in which access to a particular document is initially refused and that document is then made public, a declaration of no need to adjudicate would leave the door wide open to ‘strategic behaviour’ on the part of the institution concerned, by which that institution waits until a potential action is brought before the Court before it then discloses the document or documents that are the subject of the corresponding request for access. However, in the present case, the applicant cannot accuse the Parliament of any ‘strategic behaviour’. Suffice it to note that it was the addressee, and not the Parliament, who disclosed the requested document, with the result that the applicant cannot allege that the institution concerned employed delaying tactics.
36 Finally, in her answer to the measure of organisation of procedure referred to in paragraph 9 above, the applicant maintains that she has a legitimate interest in challenging ‘a wrong interpretation and application of Regulation [No] 1049/2001’. However, such assertions, which are very general, are not sufficient to form the basis of a legal interest in bringing proceedings, which must, according to case-law, be vested and current (see judgment of 26 February 2015, Planet v Commission, C‑564/13 P, EU:C:2015:124, paragraph 31 and the case-law cited). Further, it must be noted that, even if the duty of the institutions to comply with the provisions that they apply corresponds to a public interest, the applicant is not entitled, in the context of an action for annulment, to act in the interest of the law (see, by analogy, judgments of 30 June 1983, Schloh v Council, 85/82, EU:C:1983:179, paragraph 14, and of 21 January 1987, Stroghili v Court of Auditors, 204/85, EU:C:1987:21, paragraph 9; and order of 8 March 2007, Strack v Commission, C‑237/06 P, EU:C:2007:156, paragraph 64).
37 Consequently, the application for a declaration that there is no need to adjudicate, lodged by the Parliament on 27 March 2018, must be upheld since, due to the disclosure of the requested document by its addressee, the present action, seeking access to that document by the annulment of the decision of the Parliament refusing such access, has become devoid of purpose.
The applications to intervene lodged by the Republic of Finland and the Kingdom of Sweden
38 As there is no longer any need to adjudicate on the main action, there is also no longer any need to adjudicate on the applications to intervene lodged by the Republic of Finland and the Kingdom of Sweden.
Costs
39 According to Article 137 of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court.
40 In accordance with Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application to intervene has been decided upon, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. A copy of the order closing the proceedings is to be transmitted to the applicant for leave to intervene.
41 Taking all of the circumstances of the case into account, a fair assessment of the case will be to order the applicant and the Parliament each to bear their own costs, including those incurred in respect of the applications to intervene lodged by the Republic of Finland and the Kingdom of Sweden, in accordance with Article 144(10) of the Rules of Procedure.
42 In accordance with that same provision, the Republic of Finland and the Kingdom of Sweden shall each bear their own costs. A copy of the present order shall be transmitted to them.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action brought by Ms Päivi Leino-Sandberg.
2. There is no longer any need to adjudicate on the applications to intervene lodged by the Republic of Finland and the Kingdom of Sweden.
3. Each party shall bear its own costs, including those incurred in respect of the applications to intervene.
4. The Republic of Finland and the Kingdom of Sweden shall each bear their own costs. A copy of this order shall be transmitted to them.
Luxembourg, 20 September 2018.