JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber,Extended Composition)

6 February 1998
(1)

(Commission Decision 94/90/ECSC, EC, Euratom on public access toCommission documents — Decision refusing access to documents — Protection ofthe public interest (court proceedings))

In Case T-124/96,

Interporc Im- und Export GmbH, a company incorporated under German Law,established in Hamburg, Germany, represented by Georg M. Berrisch,Rechtsanwalt, Hamburg, with an address for service in Luxembourg at theChambers of Guy Harles, 8-10 Rue Mathias Hardt,

applicant,

v

Commission of the European Communities, represented by Ulrich Wölker, of itsLegal Service, acting as Agent, with an address for service in Luxembourg at theoffice of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of the Commission's decision of 29 May 1996confirming its refusal to grant the applicant access to certain of its documents,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber, ExtendedComposition),

composed of: B. Vesterdorf, President, C.P. Briët, P. Lindh, A. Potocki andJ.D. Cooke, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedure and further to the hearing on 21 October1997,

gives the following

Judgment

Legal framework

1.

    In the Final Act of the Treaty on European Union signed at Maastricht on 7February 1992 the Member States incorporated a Declaration (No 17) on the rightof access to information, in these terms:

'The Conference considers that transparency of the decision-making processstrengthens the democratic nature of the institutions and the public's confidence inthe administration. The Conference accordingly recommends that the Commissionsubmit to the Council no later than 1993 a report on measures designed to improvepublic access to the information available to the institutions.‘

2.

    In response to the Maastricht Declaration, the Commission undertook acomparative survey on the rules governing public access to information in theMember States and in some non-member countries. The results of its survey weresummarised in Communication 93/C 156/05 to the Council, the Parliament and theEconomic and Social Committee on public access to the institutions' documents(OJ 1993 C 156, p. 5, hereinafter 'the 1993 communication‘). In thatcommunication it concluded that there was a case for developing further the accessto documents at Community level.

3.

    On 2 June 1993, the Commission adopted Communication 93/C 166/04 on opennessin the Community (OJ 1993 C 166, p. 4), setting out the basic principles governingaccess to documents.

4.

    On 6 December 1993, the Council and the Commission drafted and jointly adopteda Code of Conduct concerning public access to Council and Commission documents

('the Code of Conduct‘) and undertook each to take the necessary steps toimplement the principles set out in the Code of Conduct before 1 January 1994.

5.

    In implementation of that agreement the Commission adopted, on 8 February 1994,on the basis of Article 162 of the EC Treaty, Decision 94/90/ECSC, EC, Euratomon public access to Commission documents (OJ 1994 L 46, p. 58). Article 1 of thatdecision formally adopted the Code of Conduct, the text of which is annexed to thedecision.

6.

    The Code of Conduct sets out the following general principle:

'The public will have the widest possible access to documents held by theCommission and the Council.

”Document" means any written text, whatever its medium, which contains existingdata and is held by the Commission or the Council.‘

7.

    The factors which may be relied upon by an institution as grounds for rejecting arequest for access to documents are listed in the Code of Conduct in the followingterms:

'The institutions will refuse access to any document where disclosure couldundermine:

—    the protection of the public interest (public security, international relations,monetary stability, court proceedings, inspections and investigations),

—    the protection of the individual and of privacy,

—    the protection of commercial and industrial secrecy,

—    the protection of the Community's financial interests,

—    the protection of confidentiality as requested by the natural or legal personsthat supplied the information or as required by the legislation of theMember State that supplied the information.

They may also refuse access in order to protect the institution's interest in theconfidentiality of its proceedings.‘

8.

    On 4 March 1994, the Commission adopted a communication on improved accessto documents (OJ 1994 C 67, p. 5, hereinafter 'the 1994 communication‘), givingdetails of the criteria for implementation of Decision 94/90. That communicationstates that 'anyone may ... ask for access to any unpublished Commissiondocument, including preparatory documents and other explanatory material‘.

Furthermore, the Commission 'guarantees that applications for access todocuments will be treated fairly and within a reasonable period‘. In that regard,the communication specifies: 'Applicants for Commission documents will receivean answer within one month‘. With regard to the exceptions provided for in theCode of Conduct, the communication states that the Commission 'may take theview that access to a document should be refused because its disclosure couldundermine public and private interests and the good functioning of the institution. ...‘ On that point, the communication stresses: 'There is nothing automatic aboutthe exemptions, and each request for access to a document will be considered onits own merits.‘

Factual background to the case

9.

    Each year, the Community opens a so-called 'Hilton‘ quota. Under that quota,certain quantities of high-quality beef ('Hilton Beef‘) from Argentina may beimported into the Community free of any levies. In order to qualify for thatexemption, a certificate of authenticity from the Argentine authorities is required.

10.

    The Commission was informed that certificates of authenticity had been found tohave been falsified and, in collaboration with the customs authorities of theMember States, initiated inquiries into the matter in late 1992 and early 1993. When the customs authorities came to the conclusion that falsified certificates ofauthenticity had been presented to them, they took action for post-clearancerecovery of the import duty.

11.

    After those falsifications had been discovered, the German authorities sought post-clearance recovery of import duty from the applicant, which requested remissionof that duty, claiming that it had presented the certificates of authenticity in goodfaith and that certain deficiencies in the control procedure were attributable to thecompetent Argentine authorities and to the Commission.

12.

    By decision of 26 January 1996, addressed to the Federal Republic of Germany, theCommission considered that the applicant's request for remission of the importduty was not justified.

13.

    By letter of 23 February 1996 to the Secretary-General of the Commission and tothe Directors-General of Directorates-General ('DG‘) I, VI and XXI, theapplicant's lawyer requested access to certain documents relating to controlprocedures for imports of Hilton Beef and to the inquiries which gave rise to theGerman authorities' decisions to effect post-clearance recovery of import duty. Therequest concerned 10 categories of document: (1) the declarations of the MemberStates of quantities of Hilton Beef imported from Argentina between 1985 and1992, (2) the declarations of the Argentine authorities of quantities of Hilton Beefexported to the Community in the same period, (3) the Commission's internalrecords drawn up on the basis of those declarations, (4) the documents relating to

the opening of the 'Hilton‘ quota, (5) the documents relating to the designationof the bodies responsible for issuing certificates of authenticity, (6) the documentsrelating to the agreement concluded between the Community and Argentinaconcerning a reduction in the quota following discovery of the falsifications, (7) anyreports of inquiries into the Commission's control procedures as regards the'Hilton‘ quota in 1991 and 1992, (8) the documents relating to inquiries into anyirregularities in imports between 1985 and 1988, (9) the views of DG VI and DGXXI on decisions taken in other similar cases and (10) the minutes of the meetingsof the group of experts from the Member States on 2 and 4 December 1995.

14.

    By letter of 22 March 1996, the Director-General of DG VI refused the request foraccess as regards the correspondence with the Argentine authorities and therecords of the discussions prior to the granting and opening of the 'Hilton‘ quotasand as regards the correspondence with the Argentine authorities following thediscovery of the falsified certificates of authenticity. That refusal was based on theexception for protection of the public interest (international relations). As regardsthe remaining documents, the Director-General also refused access to thoseemanating from the Member States or the Argentine authorities, on the groundthat the applicant should address its request directly to the various authors of thosedocuments.

15.

    By letter of 25 March 1996, the Director-General of DG XXI refused the requestfor access to the report of the internal inquiry into the falsifications drawn up bythe Commission, basing that refusal on the exception for protection of the publicinterest (inspections and investigations) and the exception for protection of theindividual and of privacy. As regards the positions taken by DG VI and DG XXIconcerning other requests for remission of import duty and the minutes of themeetings of the committee of experts from the Member States, the Director-General of DG XXI refused access to the documents on the basis of the exceptionfor protection of the institution's interest in the confidentiality of its proceedings. As regards the remaining documents, he refused access to those emanating fromthe Member States, on the ground that the applicant should address its requestdirectly to the various authors of those documents.

16.

    By letter of 27 March 1996, the applicant's lawyer submitted a confirmatoryapplication within the meaning of the Code of Conduct to the Secretary-Generalof the Commission. In that letter, he challenged the justification for the groundson which the Directors-General of DG VI and DG XXI refused access to thedocuments.

17.

    By application lodged at the Registry of the Court of First Instance on 12 April1996, the applicant and two other German firms brought an action for annulmentof the Commission's decision of 26 January 1996 (Case T-50/96 Primex and Othersv Commission).

18.

    By letter of 29 May 1996, the Secretary-General of the Commission rejected theconfirmatory application. That letter ('the contested decision‘) was couched in thefollowing terms:

'Following an examination of your request, I regret to have to inform you that Iconfirm the decision of DG VI and DG XXI for the following reasons.

The documents requested all concern a Commission decision of 26 January 1996(doc. COM (C)96 180 final) which has since become the subject-matter of anapplication for annulment brought by your representative (Case T-50/96).

Consequently, and without prejudice to other exceptions which might justifyrefusing access to the documents requested, the exception for protection of thepublic interest (court proceedings) is applicable. The Code of Conduct cannotoblige the Commission, as a party to a pending action, to provide the other partywith documents relating to the dispute.‘

19.

    By letter lodged at the Court Registry on 25 June 1996 in the context of CaseT-50/96, the applicant requested the Court to order production of the documentsrequested as a measure of organisation of the procedure.

Procedure and forms of order sought

20.

    By application lodged at the Registry of the Court of First Instance on 9 August1996, the applicant brought the present action. The case was allocated to aChamber of three judges. After hearing the parties, the Court, by decision of 2July 1997, assigned the case to the Third Chamber, Extended Composition,composed of five judges.

21.

    Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(Third Chamber, Extended Composition) decided to open the oral procedurewithout any preparatory measures of inquiry.

22.

    At the hearing in open court on 21 October 1997 the parties presented oralargument and replied to the Court's oral questions.

23.

    The applicant claims that the Court should:

—    annul the contested decision;

—    declare that the Commission is not entitled to refuse access to thedocuments specified in the letter of 23 February 1996 from the applicant'slawyer to the Secretary-General of the Commission; and

—    order the Commission to pay the costs.

24.

    The Commission contends that the Court should:

—    dismiss the application for directions to be issued as inadmissible;

—    dismiss the remainder of the application as unfounded; and

—    order the applicant to pay the costs.

The first head of claim, seeking annulment of the contested decision

25.

    In support of its application, the applicant puts forward three pleas in law. Thefirst alleges infringement of the Code of Conduct and of Decision 94/90. Thesecond alleges infringement of Article 190 of the Treaty. The third plea, which wasput forward at the hearing, alleges infringement of the right to a fair hearing in thatthe Secretary-General relied, in the contested decision, on a new ground forrefusing access which had not previously been put forward.

26.

    In the circumstances of this case, it is appropriate to examine the first two pleastogether.

The first and second pleas taken together, alleging infringement of the Code ofConduct and of Decision 94/90 and infringement of Article 190 of the Treaty

Arguments of the parties

— Infringement of Decision 94/90 and the Code of Conduct

27.

    The applicant notes, first of all, that the Commission refused its request for accessto the documents on the sole ground that the exception for protection of the publicinterest (court proceedings) was applicable. By so doing, however, the Commissioninfringed the provisions relating to the exceptions to the right of access todocuments laid down in the Code of Conduct and thus in Decision 94/90.

28.

    It points out that Decision 94/90 and the Code of Conduct are binding on theCommission. Those measures place a legal obligation on the Commission to givethe public the widest possible access to documents held by it (Case T-105/95 WWFUK v Commission [1997] ECR II-313, paragraph 55, and Case T-194/94 Carvel andGuardian Newspapers v Council [1995] ECR II-2765, which concerns the equivalentdecision adopted by the Council — Council Decision 93/731/EC of 20 December1993 on public access to Council documents (OJ 1993 L 340, p. 43)).

29.

    The exceptions to the right of access to documents should be interpreted strictlyin order not to frustrate the specific aim of the Code of Conduct, which is to givethe public 'the widest possible access to documents‘.

30.

    The applicant submits that the Commission is not entitled to apply the exceptionsin a general way. In order to determine whether disclosure of a document isprecluded by one of the exceptions, the Commission should first weigh the interestswhich the exception in question is intended to protect against the overall aim of theCode of Conduct and then establish for each document the 'imperative reasons‘justifying application of the exception (Case C-2/88 Imm. Zwartveld and Others[1990] ECR I-4405, paragraphs 11 and 12).

31.

    The Commission is wrong to consider, relying on the exception for protection of thepublic interest (court proceedings), that it is empowered to refuse access to anydocument relating to a decision which is the subject of an action for annulment. Such a position by the Commission would tend to interfere with the judicialprocess.

32.

    Having refused access to the documents requested on the ground that they mightbe used against the Commission as the defendant in court proceedings, thecontested decision could have the consequence that a number of Commissiondecisions might escape judicial review. As a public administration acting in thegeneral interest, the Commission should not be entitled to withhold texts which itadopts from such review by keeping them secret.

33.

    The exception in question should be interpreted in accordance with point 2.2 of the1993 communication, which lists the interests supposed to be protected by thatexception in the laws of the Member States. In fact, it covers only informationlikely to damage the investigation of criminal offences and the prosecution ofoffenders.

34.

    Finally, the Commission's position in the present case is contradicted by itsobservations submitted in the Primex case, referred to above, on the request formeasures of organisation of the procedure seeking production of those samedocuments. In that case, the Commission considered that the documents were notrelevant to the proceedings.

35.

    Whilst accepting that it is important from a political point of view for the public tohave access to documents held by the Community institutions, the Commissionquestions whether the principle of access to documents, as set out in thedeclarations on transparency, is important from a legal point of view. As regardsthe legal value of Decision 94/90, it stresses that that decision was adopted underthe framework of its power of internal organisation, which authorises it to takeappropriate measures in order to ensure its internal operation in conformity withthe interests of good administration (Case C-58/94 Netherlands v Council [1996]ECR I-2169, paragraph 37).

36.

    The Commission submits, first, that the exception for protection of the publicinterest (court proceedings) authorises it, in the context of Decision 94/90, not tomake available to the public — and to the applicant — all documents relating topending proceedings. For that exception to be applicable, it considers it is enoughthat the documents requested concern the pending proceedings and relate to theirsubject-matter, as is the case here.

37.

    Any other interpretation would be likely seriously to jeopardise the right to a fairhearing and thus the public interest. Even if its rights as a defendant might wellnot be harmed by the disclosure of each and every document, the Commissionconsiders that it would not be able to prepare an adequate defence if, as theapplicant claims, it had to prove the importance of each document for the legalproceedings. It denies that it has to put forward 'imperative reasons‘ in order tobe able to refuse a request for access to documents.

38.

    The 1993 communication does not lead to any different interpretation. Theexception in the Code of Conduct is wider in scope than the equivalent exceptionsunder national law, since the Code of Conduct does not specify the restrictiveparticular of 'judicial secrecy‘ added in the description of the equivalent exceptionsunder national law.

39.

    Secondly, the Commission submits that the question whether the applicant mayhave access to the documents requested must be settled on the basis of the Rulesof Procedure of the Court of First Instance concerning measures of organisationof the procedure and not on that of the Code of Conduct. That code is not, andis not intended to be, the appropriate text for deciding the question raised here.

40.

    Since measures of organisation of the procedure have been requested by theapplicants in Primex, referred to above, it is for the Court to decide to what extentit can grant that request on the basis of its Rules of Procedure. The questionwhether the documents requested by the applicant are really relevant to the actionbrought against the decision of 26 January 1996 (see paragraph 12 above) can onlybe decided in the context of that action.

— Infringement of Article 190 of the Treaty

41.

    The applicant submits that the statement of reasons in the contested decision doesnot meet the requirements of Article 190 of the Treaty.

42.

    In the first place, the wording of the contested decision does not reveal whether thespecial features of the case in issue were analysed. Secondly, the Commission didnot specify the reasons for which it considers that the exception for protection ofthe public interest (court proceedings) is applicable.

43.

    In particular, the Commission failed, in breach of its obligations, to state for eachdocument the 'imperative reasons‘ for which disclosure would jeopardiseprotection of the public interest.

44.

    Finally, the applicant submits that the Commission may not rely in this case onother exceptions provided for in the Code of Conduct because the contesteddecision contains an inadequate statement of reasons in that regard.

45.

    The Commission denies that it has infringed Article 190 of the Treaty. Thestatement of reasons clearly summarises the essential point. As regards theapplicant's regret that the decision does not analyse the 'special features‘ of thecase, the Commission considers that it is not obliged to prove, for each and everydocument, that disclosure could damage the public interest.

Findings of the Court

46.

    Decision 94/90 is a measure conferring on citizens a right of access to documentsheld by the Commission (WWF UK, cited above, paragraph 55).

47.

    The fact that Article 162 of the Treaty was taken as the legal basis for that decisiondoes not affect that finding. Even if Decision 94/90 was adopted under theCommission's powers of internal organisation, there is nothing to prevent rules onthe internal organisation of the work of an institution having legal effects vis-à-visthird parties (Netherlands v Council, cited above, paragraph 38).

48.

    From its overall scheme, it is clear that Decision 94/90 is intended to applygenerally to requests for access to documents. By virtue of that decision, anyperson may request access to any unpublished Commission document, and is notrequired to give a reason for the request (see the 1993 and 1994 communications).

49.

    In accordance with the Code of Conduct, however, the right of access to documentsis subject to certain exceptions. Those exceptions must be interpreted strictly, inorder not to frustrate the application of the general principle of giving the public'the widest possible access to documents held by the Commission‘ (WWF UK, citedabove, paragraph 56).

50.

    As was held at paragraph 57 of the WWF UK judgment, the Code of Conductcontains two categories of exception (see paragraph 7 above).

51.

    As regards the first category, to which the exception relied upon in the present casebelongs, it provides: 'The institutions will refuse access to any document wheredisclosure could undermine ... the protection of the public interest (public security,international relations, monetary stability, court proceedings, inspections andinvestigations)‘.

52.

    The use of the form 'could‘ means that before deciding on a request for access todocuments the Commission must consider, for each document requested, whetherin the light of the information in its possession disclosure is in fact likely toundermine one of the interests protected under the first category of exceptions. If so, the Commission is bound to refuse access to the document in question, thatbeing a case in which the Code of Conduct provides that the institutions 'willrefuse‘ access.

53.

    Such a decision on the part of the institution must state the reasons on which it isbased, in accordance with Article 190 of the Treaty. It has consistently been heldthat the reasoning required by that provision must show clearly and unequivocallythe reasoning of the Community authority which adopted the contested measureso as to enable the persons concerned to ascertain the reasons for the measure inorder to protect their rights, and the Court to exercise its power of review (CaseC-278/95 P Siemens v Commission [1997] ECR I-2507, paragraph 17; WWF UK,cited above, paragraph 66).

54.

    The statement of the reasons for a decision refusing access to documents musttherefore contain — at least for each category of documents concerned — the specificreasons for which the Commission considers that disclosure of the documentsrequested is precluded by one of the exceptions provided for in the first categoryof exceptions (WWF UK, paragraphs 64 and 74), in order to enable the person towhom the decision is addressed to satisfy himself that the Commission did in factconsider the documents in the manner described in paragraph 52 above and toassess whether the grounds for refusal are justified.

55.

    In the present case, however, the contested decision contains only the conclusionthat the exception for protection of the public interest (court proceedings) isapplicable (see paragraph 18 above). It provides no explanation, even forcategories of documents, from which it might be ascertained whether all thedocuments requested, some of which are several years old, do indeed fall within thescope of the exception relied upon because they bear a relation to the decisionwhose annulment is sought in the Primex case, referred to above.

56.

    The statement of reasons in the contested decision is therefore inadequate.

57.

    It follows that the contested decision must be annulled, without there being anyneed to rule on the plea alleging infringement of the right to a fair hearing.

The second head of claim, seeking a declaration that the Commission is notentitled to refuse access to the documents specified in the applicant's letter of23 February 1996 to the Secretary-General of the Commission

58.

    In support of this head of claim, the applicant submits that under the Code ofConduct it is for the Secretary-General, when dealing with a confirmatoryapplication, to review the initial rejection of the request for access to thedocuments in question. He must therefore take a final decision as to the groundson which he intends to base final rejection of the request.

59.

    In the applicant's view, therefore, it would deprive the procedure laid down inDecision 94/90 of any practical effect if, following a judgment annulling thedecision, the Commission were allowed in a subsequent administrative procedureto rely on different grounds to justify rejection of a request for access to thedocuments. If that were so, the applicant would be obliged to bring the matterbefore the Court again, a requirement which it considers unacceptable.

60.

    In order to avoid further court proceedings, the applicant therefore requests theCourt to find that the Commission has no grounds for refusing access to the variousdocuments referred to in its letter of 23 February 1996 (see paragraph 13 above),since it has exhausted its right to refuse access to those documents by relying onother grounds.

61.

    This head of claim, which seeks the issue of directions to the Commission, areinadmissible, since the Community judicature, when exercising the jurisdiction toannul acts conferred on it by Article 173 of the Treaty, is not entitled to issuedirections to the Community institutions (see, for example, Case 15/85 ConsorzioCooperative d'Abruzzo v Commission [1987] ECR 1005, paragraph 18, and CaseT-346/94 France-Aviation v Commission [1995] ECR II-2841, paragraph 42).

Costs

62.

    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the applicant has applied for costs and the Commission hasessentially been unsuccessful, the Commission must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition)

hereby:

1.    Annuls the Commission's decision of 29 May 1996 refusing the applicantaccess to certain documents held by the Commission;

2.    Dismisses the application as inadmissible in so far as it seeks the issue ofdirections to the Commission;

3.    Orders the Commission to pay the costs.

VesterdorfBriët Lindh Potocki Cooke

Delivered in open court in Luxembourg on 6 February 1998.

H. Jung

B. Vesterdorf

Registrar

President

1: Language of the case: German.

ECR