ORDER OF THE GENERAL COURT (Fifth Chamber)
19 February 2013 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Implied refusal of access – Interest in bringing proceedings – Express decision adopted after the action had been brought – No need to adjudicate)
In Case T‑418/12,
Jürgen Beninca, residing in Frankfurt am Main (Germany), represented by C. Zschocke, lawyer,
applicant,
v
European Commission, represented by F. Clotuche-Duvieusart, acting as Agent,
defendant,
APPLICATION for annulment of the Commission’s implied decision of 27 July 2012 refusing access to a document,
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas (Rapporteur), President, V. Vadapalas and K. O’Higgins, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 3 April 2012, the applicant, Jürgen Beninca, made a request to the European Commission, pursuant to 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), for access to a memorandum from the head of the unit responsible for competition matters at the Commission’s Directorate-General for Enterprise and Industry, drawn up in the context of the proposed merger between Deutsche Börse AG and NYSE Euronext (Case COMP/M.6166 − NYSE Euronext/Deutsche Börse AG), and which was alluded to in a press article.
2 On 23 May 2012 the Commission refused access to that document on the basis of Article 4(2) and (3) of Regulation No 1049/2001.
3 On 13 June 2012, the applicant submitted a confirmatory application to the Commission in accordance with Article 7(2) of Regulation No 1049/2001.
4 On 15 June 2012, the Commission acknowledged receipt of the confirmatory application and informed the applicant that he would receive a response within 15 working days.
5 On 6 July 2012, the Commission informed the applicant that the time-limit for replying to his confirmatory application had been extended by 15 working days until 27 July 2012.
6 On 26 July 2012 the Commission informed the applicant that it was not in a position to provide him with a definitive response as internal consultations were still ongoing.
Facts subsequent to the bringing of the action
7 On 9 October 2012, the Commission adopted a confirmatory decision refusing to grant the applicant access to the document requested (the ‘express decision’).
8 On 19 December 2012, the applicant brought an action against the express decision (Case T‑561/12).
Procedure and forms of order sought
9 By an application lodged at the Registry of the General Court on 21 September 2012, the applicant brought the present action against the Commission’s implied decision of 27 July 2012 refusing access to a document (the ‘implied decision’).
10 By separate document lodged at the Court Registry on 30 November 2012, the Commission submitted an application for a ruling that there is no need to adjudicate under Article 113 of the Court’s Rules of Procedure by reason of the adoption of the express decision. The applicant lodged his observations on that application on 14 January 2013.
11 In his application, the applicant claims that the Court should:
– annul the implied decision;
– order the Commission to pay the costs.
12 In its application for a ruling that there is no need to adjudicate, the Commission claims that the Court should:
– dismiss the action as being devoid of purpose;
– decide on the attribution of costs.
13 In his observations on the application for a ruling that there is no need to adjudicate, the applicant submits that there is no longer any need to adjudicate on the action and asks the Court to order the Commission to pay the costs.
Law
14 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.
15 In the present case, the Court considers that it has sufficient information from the documents before it and decides to give its decision without taking further steps in the proceedings.
16 It should be noted that the present action concerns the annulment of the implied decision.
17 In this respect, the Commission states that on 9 October 2012 it adopted the express decision, which resulted in the applicant losing his interest in obtaining the annulment of the implied decision.
18 The applicant also considers that there is no longer any need to adjudicate on the present action as the interest in bringing proceedings against the implied decision no longer exists because of the adoption of the express decision.
19 Both the applicant and the Commission therefore ask the General Court to declare that the present action has become devoid of purpose.
20 In those circumstances, the Court holds that there is no longer any need to adjudicate on this action.
Costs
21 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.
22 In the light of the factual circumstances of the present case, in particular the fact that the Commission exceeded the period available to it, under Article 8(1) of Regulation No 1049/2001, to reply to the confirmatory application, with the result that the applicant had no choice, in order to safeguard his rights, other than to bring the present action against the implied decision, the Commission must be ordered to bear its own costs and to pay those of the applicant.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders that:
1. There is no longer any need to adjudicate on the action.
2. The European Commission shall bear its own costs and pay those incurred by Mr Jürgen Beninca.
Luxembourg, 19 February 2013.