Case T-36/10

Internationaler Hilfsfonds eV

v

European Commission

(Action for annulment – Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the LIEN 97-2011 contract – Response to an initial request – Period allowed for bringing proceedings – Manifest inadmissibility – Implied refusal of access – Interest in bringing proceedings – Explicit decision adopted after the action was brought – No need to adjudicate)

Summary of the Order

1.      Actions for annulment – Time-limits – Mandatory – To be considered of the EU Court’s own motion

(Art. 263, sixth para., TFEU; Rules of Procedure of the General Court, Art. 101(2))

2.      Actions for annulment – Actionable measures – Concept – 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 – Interest in bringing proceedings – Disappearance of such an interest on account of an event occurring after the application was lodged

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

4.      Procedure – Costs – Institution clearly exceeding the prescribed time-limit to reply to a confirmatory application – Safeguarding of applicant’s rights requiring an annulment action to be brought against implied rejection decision – Liability of the institution concerned for its own costs and those incurred by the applicant relating to the heads of claim for annulment of that decision

(Rules of Procedure of the General Court, Art. 87(6); European Parliament and Council Regulation No 1049/2001, Art. 8)

1.      The two-month time-limit for bringing an action laid down in the sixth paragraph of Article 263 TFEU is a matter of public policy, having been 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 the EU Courts must ascertain, of their own motion, whether that time-limit has been observed.

An application for the annulment of a Commission decision refusing a legal entity full access to the file relating to a contract concluded between that entity and the Commission must be regarded as out of time and therefore dismissed as inadmissible, without there being any need to examine the other pleas of inadmissibility raised by the Commission, where at the time the application was made, that time-limit had expired, at least one month and three days earlier, in view of the extension on account of distance by 10 days and, in accordance with Article 101(2) of the Rules of Procedure, the extension of the period where it would otherwise end on a Sunday or official holiday.

(see paras 31, 34-35)

2.      Without calling into question the system of legal remedies established by the FEU Treaty, the mere silence of an institution is to be considered to be an implied decision, except where there are express provisions laying down a time-limit after which an implied decision will be deemed to have been taken by an institution which has been asked to state its position and prescribing the content of that decision.

Since Article 8(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents expressly establishes a time-limit after which, in the case of failure to reply to the confirmatory application, the institution concerned is considered to have adopted an implied decision and, moreover, defines the content of the implied decision, that is to say that it is to be considered to be a negative decision, and since the legislature has, in Article 8(3) of Regulation No 1049/2001, expressly provided that an action may be brought by the applicant against the implied decision of rejection pursuant to the provisions of the FEU Treaty, it must therefore be found that the silence of an institution following a confirmatory application made in accordance with Regulation No 1049/2001 is to be considered to be an implied decision of rejection against which an action may be brought pursuant to Article 263 TFEU.

(see paras 38, 40-42)

3.      If the conditions governing the admissibility of an action for annulment must be judged, subject to the separate question of the loss of an interest in bringing proceedings, at the time when the application is lodged, in the interest of the proper administration of justice, that consideration cannot prevent the Court from finding that there is no longer any need to adjudicate on the action in the event that an applicant who initially had a legal interest in bringing proceedings has lost all personal interest in having the contested decision annulled on account of an event occurring after that application was lodged. For an applicant to be entitled to pursue an action seeking the annulment of a decision, he must retain a personal interest in the annulment of the contested decision, because, otherwise, if the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the General Court on the merits cannot bring him any benefit.

There is no longer any need to adjudicate on the action for annulment of an implied decision refusing access to documents, brought in accordance with Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, since the applicant no longer has a personal interest in that decision on account of a new Commission decision by which it explicitly responded to the confirmatory application and withdrawal of the implied decision of rejection may therefore be inferred.

(see paras 46, 50)

4.      Where an institution has manifestly exceeded the prescribed time-limit, pursuant to Article 8 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, to reply to a confirmatory application, with the result that the applicant had no choice, in order to safeguard its rights, other than to bring an action for annulment of the implied decision of rejection, that institution must be ordered to pay its own costs and those incurred by the applicant relating to the heads of claim for annulment of the implied decision of rejection.

(see para. 55)