Case T‑278/11

ClientEarth and Others

v

European Commission

(Actions for annulment — Access to documents — Regulation (EC) No 1049/2001 — Implied refusal of access — Period allowed for commencing proceedings — Delay — Manifest inadmissibility)

Summary — Order of the General Court (Fourth Chamber), 13 November 2012

1.      Actions for annulment — Time limits — Public policy — Examination by the EU judicature of its own motion — Undertakings made by an institution — No effect

(Art. 263, sixth para., TFEU; Rules of Procedure of the General Court, Art. 102(2)); European Parliament and Council Regulation No 1049/2001, Art. 8(1) to (3))

2.      Actions for annulment — Actionable measures — Definition — Measures producing binding legal effects — Silence or inaction of an institution — Assimilation to an implied decision of refusal — Exclusion — Limits — Failure to reply to a confirmatory application within the prescribed time limit

(Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 8(3))

3.      Actions for annulment — Time limits — Point from which time starts to run — Action against an implied decision rejecting a request for access to documents

(Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 8(1) to (3))

4.      Judicial proceedings — Costs — Responsibility — Exceptional circumstances — Manifestly exceeding the prescribed time limit to reply to a confirmatory application by an institution — Liability of the institution concerned for its own costs and three quarters of the costs incurred by the applicant

(Rules of Procedure of the General Court, Art. 87(3), first para.)

1.      The time limit for bringing actions is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and that it is for the European Union courts to ascertain, of their own motion, whether it has been complied with. The time limits for bringing proceedings are at the discretion of neither the Court nor the parties.

The fact that an institution has made express undertakings in writing, that it intended to adopt, within a given period, a final reply to a confirmatory application, within the meaning of Article 8(1) and (2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, cannot have the effect of postponing the date when the implied rejection decision was made, within the meaning of Article 8(3) of that regulation and, consequently, the date from which the limitation period for bringing that action began to run, as well as that on which it expired.

(see paras 30, 31, 43-46)

2.      See the text of the decision.

(see paras 32, 33)

3.      With regard to an implied negative decision, within the meaning of Article 8(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, which stems from the failure by the institution to reply, within the prescribed time limit, to a confirmatory application, within the meaning of Article 8(1) and (2) of that regulation, the limitation period within which the action may be brought for annulment of such a decision, pursuant to Article 263 TFEU, must begin to run from the date on which the decision was legally made.

The reference, in the provisions of Article 8(3) of that regulation, to the concept of prescribed time limit, rather than a reference to a fixed period, is explained by the fact that, under the provisions of Article 8(1) and (2) of that regulation, the duration of the processing period of a confirmatory application can vary between a minimum of 15 working days and a maximum of 30 working days from registration of the application. Consequently, the duration of the prescribed limitation period, within the meaning of Article 8(3) of Regulation No 1049/2001, at the end of which the implied negative decision is made, must be calculated, in each specific case, having regard to the course of the processing, by the institution concerned, of the confirmatory applications before it, in accordance with the provisions of Article 8(1) and (2) of that regulation.

(see paras 36-38)

4.      With regard to a situation where multiple express undertakings made by the defendant institution could have given rise to legitimate expectations, on the part of the applicants, and made them think, wrongly but understandably in light of the express undertakings that were made, that the expiry date of the prescribed limitation period had been postponed, and where the defendant institution took its decision one year after expiry of the prescribed limitation period within which an action for annulment must be brought against the negative reply of that institution to an application by the applicant parties, that limitation period having been clearly and seriously exceeded, it is fair that the defendant institution should pay, in addition to its own costs, three quarters of the costs incurred by the applicants.

(see paras 49-51)