JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
5 December 2018(*)
(Access to documents — Regulation (EC) No 1049/2001 — Documents concerning an infringement procedure brought by the Commission against Ireland — Refusal of access — Exception concerning the protection of inspections, investigations and audits — General presumption — Overriding public interest)
In Case T‑152/17,
Loreto Sumner, residing in Leixlip (Ireland), represented by J. MacGuill and E. Martin-Vignerte, Solicitors,
applicant,
v
European Commission, represented by C. Ehrbar and M. Konstantinidis, acting as Agents,
defendant,
supported by
Ireland, represented initially by A. Joyce and L. Williams and subsequently by A. Joyce, M. Browne and G. Hodge, acting as Agents, and by A. Carroll, Barrister-at-Law,
intervener,
APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2017) 247 final of 13 January 2017 refusing access to documents relating to infringement procedure 2014/4131 brought against Ireland regarding the application of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9),
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, M. Kancheva and J. Passer (Rapporteur), Judges,
Registrar: X. Lopez Bancalari, Administrator,
having regard to the written part of the procedure and further to the hearing on 17 May 2018,
gives the following
Judgment
Background to the dispute
1 By letter of 13 October 2016, the applicant, Ms Loreto Sumner, requested information from the European Commission on the status of a complaint submitted to the latter by two trade unions regarding non-compliance by Ireland with Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9), as well as access to the observations lodged by any party in the context of these proceedings.
2 By letter of 14 November 2016, the Commission informed the applicant that a letter of formal notice had been sent to Ireland under Article 258 TFEU and that the procedure with regard to that Member State was ongoing. Furthermore, the Commission refused access to the documents requested, on the basis of the exception concerning the protection of the purpose of inspections, investigations and audits, which is provided for in the third 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).
3 By letter of 12 December 2016, the applicant submitted a confirmatory application for access to the documents pursuant to Article 7(2) of Regulation No 1049/2001.
4 By Decision C(2017) 247 final of 13 January 2017 (‘the contested decision’), the Commission confirmed the refusal of access to the requested documents, on the basis of the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001.
5 The Commission noted that the requested documents related to infringement procedure 2014/4131, which was still ongoing. Accordingly, the Commission based its refusal on the general presumption of non-disclosure of documents relating to the infringement procedure during its pre-litigation stage. In its view, the disclosure of those documents risked having an adverse effect on the dialogue between the Commission and Ireland. The Commission also found that it was not possible to grant partial access and that there was no overriding public interest in disclosure.
Procedure and forms of order sought
6 By application lodged at the Court Registry on 6 March 2017, the applicant brought the present action.
7 By document lodged at the Court Registry on 16 June 2017, Ireland sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By decision of 21 August 2017, the President of the Eighth Chamber of the Court granted Ireland leave to intervene.
8 Ireland lodged its statement in intervention on 2 October 2017.
9 The Commission and the applicant lodged their observations on the statement in intervention on 23 October and 16 November 2017, respectively.
10 By order of 8 November 2017, made following an application lodged at the Court Registry on 13 March 2017 and the Commission’s observations of 6 July 2017, the President of the Eighth Chamber of the Court granted the applicant legal aid.
11 Acting upon a proposal of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral part of the procedure.
12 The applicant claims, in essence, that the Court should:
– annul the contested decision;
– re-examine the possibility of disclosing each document held by the Commission.
13 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
14 Ireland contends that the Court should dismiss the action.
Law
15 The applicant relies, in essence, on three pleas in law in support of her action, alleging, first, infringement, as a result of unlawful reliance on a general presumption, of the obligation to examine the application for access in a concrete manner; secondly, infringement of the obligation to carry out a specific and effective examination of the possibility of partial access; and, thirdly, a manifest error of assessment with regard to the existence of an overriding public interest.
The first plea in law, alleging infringement, as a result of unlawful reliance on a general presumption, of the obligation to examine the application for access in a concrete manner
16 The applicant notes that the Commission based the contested decision on the general presumption established by the Court of Justice in its judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738).
17 The applicant argues that, by applying such a presumption, the Commission erred in law. The Commission referred to the categories of documents defined in the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), but failed to take into account the fact that the documents at issue in the case giving rise to that judgment concerned the infringement procedure laid down by a specific regulation and not the general infringement procedure.
18 The applicant submits that, as regards all the categories of documents defined by the Court of Justice, a pattern may be observed. In each case, Regulation No 1049/2001 is counterbalanced by another regulation which, so the applicant argues, provides a more restrictive framework for the disclosure of documents during an investigation.
19 Such a combination of Regulation No 1049/2001 and a specific regulation governing disclosure to the public is not present here. The infringement procedure against Ireland is brought on the basis of Article 258 TFEU. Moreover, Directive 2003/88, to which the infringement procedure relates, does not contain any specific provision relating to investigation of an alleged infringement.
20 Consequently, the Commission could not, in the applicant’s view, rely on a general presumption in the present case. Having erred in law, the Commission failed to undertake a concrete examination of each document.
21 The applicant argues that, beyond the fact that the contested decision states that the documents at issue cannot be disclosed on account of a general presumption, the Commission has failed to demonstrate any hypothetical, let alone real and reasonably foreseeable, risk that the infringement procedure might be undermined.
22 In support of her position, the applicant points to the fact that Ireland has disclosed key documents such as the Commission’s letter of formal notice of 16 October 2014 and Ireland’s response of 19 December 2014. The applicant argues that the Commission has failed to establish the existence of a risk to the proper completion of the infringement procedure in the event of disclosure.
23 The Commission, supported by Ireland, contests the applicant’s view.
24 As a preliminary point, it is necessary to bear in mind that, under Article 15(3) TFEU, any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to documents of the Union’s institutions, subject to the principles and the conditions that are defined by EU law. Moreover, the same right is recognised by Article 42 of the Charter of Fundamental Rights of the European Union.
25 Regulation No 1049/2001 seeks, as indicated in recital 4 and Article 1 thereof, to give the public a right of access to documents of the institutions which is as wide as possible. It is also apparent from that regulation, in particular from recital 11 and Article 4 thereof, which lays down a system of exceptions in that regard, that that right of access is, nevertheless, subject to certain limits based on reasons of public or private interest (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 40). Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 63).
26 Under the exception relied upon by the Commission, namely that provided for in the third indent of Article 4(2) of Regulation No 1049/2001, the institutions must refuse access to a document where its disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.
27 It follows that the system of exceptions laid down in Article 4 of Regulation No 1049/2001, particularly in paragraph 2 of that article, is based on a balancing of the opposing interests in a given situation, that is to say, first, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 42, and of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 42).
28 In the present case, it is not disputed that the documents covered by the applicant’s request, to which the Commission refused to grant access, relate to an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. The applicant in fact seeks access to the documents contained in the Commission’s administrative file relating to an infringement procedure initiated against Ireland, which is undeniably an investigation (see, to that effect, judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 1 and 43, and of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 43).
29 In order to justify refusal of access to a document, the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) of Regulation No 1049/2001. The institution concerned must also explain how access to that document could specifically and effectively undermine the interest protected by an exception laid down in that article (judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 116; of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 44; and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 68).
30 However, the case-law has acknowledged that it is open to the institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature (judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 116; of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 45; and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 69).
31 It must be stated that, according to the case-law, it can be presumed that disclosure of the documents relating to an infringement procedure during its pre-litigation stage risks altering the nature of that procedure and changing the way it proceeds and, accordingly, that disclosure would in principle undermine the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001 (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 65, and of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 46).
32 Contrary to what the applicant claims, when it refers to the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), application of the general presumption concerning the documents relating to an infringement procedure does not presuppose the applicability, in a particular case, of a specific regulation providing for a more restrictive framework than that of Regulation No 1049/2001 for the disclosure of documents during an investigation.
33 In this regard, it should be noted that, when the Court of Justice, in the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 52 to 55), referred to Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13), that was not for the purpose of finding that application of the general presumption presupposes the applicability of that regulation. Rather, it was for the purpose of finding that the first sentence of Article 6(1) of that regulation, which lays down a rule intended to facilitate access to documents containing environmental information, provides that that rule does not apply to investigations, in particular those concerning possible infringements of EU law (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 54).
34 It followed, so the Court of Justice continued, that the infringement procedure under Article 258 TFEU is regarded, by Regulation No 1367/2006, as a procedure which, as such, has characteristics that preclude full transparency from being granted in the environmental field. The infringement procedure therefore has a special position within the system of access to documents (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 55).
35 The applicant is therefore wrong to contend that application of the general presumption concerning the documents relating to an infringement procedure presupposes the applicability, in a particular case, of a specific regulation providing for a more restrictive framework than that of Regulation No 1049/2001 for the disclosure of documents during an investigation.
36 In addition, in later passages of the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), the Court of Justice made some general observations on the objectives of the infringement procedure under Article 258 TFEU (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 56 to 64), in order to conclude that there is a general presumption that disclosure of the documents in the administrative file concerning an infringement procedure, in principle, undermines the protection of the purpose of investigations (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 65 and 66).
37 The Court of Justice held that the General Court had not erred in law by recognising that it is possible for the Commission to base its decision on the general presumption that public access, even if only partial, to the documents relating to an infringement procedure during the pre-litigation stage thereof jeopardises the achievement of the objectives of that procedure, in order to refuse access to those documents on the basis of the third indent of Article 4(2) of Regulation No 1049/2001 (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 70).
38 Finally, it should be noted that, in the judgment of 11 May 2017, Sweden v Commission (C‑562/14 P, EU:C:2017:356, paragraph 40), the Court of Justice expressly recalled having decided, in the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), that documents relating to an infringement procedure during the pre-litigation stage may benefit from the general presumption of confidentiality. The Court of Justice stated that it had held, in paragraph 65 of that judgment, that it can be presumed that the disclosure of the documents concerning an infringement procedure during its pre-litigation stage risks altering the nature of that procedure and changing the way it proceeds and that, accordingly, that disclosure would in principle undermine the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.
39 By its very nature, the general presumption recognised by the EU judicature –– according to which even partial access by the public to the documents relating to an infringement procedure at the pre-litigation stage would jeopardise the achievement of the objectives of that procedure –– has the effect that, when the presumption is raised against a request for access, the institution relying on it does not have to carry out a specific and effective examination of the risk in respect of each document.
40 As regards the fact that some documents from the infringement procedure are, as is apparent from the application, in the possession of the applicant, the Court observes that, according to the case-law and on the assumption — which Ireland disputes — that these documents were released following a communication from the Irish authorities under the Irish legislation on freedom of information, recital 15 of Regulation No 1049/2001 states that it is not the object or the effect of that regulation to amend national legislation on access to documents. Requests for access to documents held by the national authorities, including documents that originate from EU institutions, therefore remain governed by the national rules applicable to those authorities, without the provisions of Regulation No 1049/2001 replacing those rules, subject to the requirements laid down by Article 5 of that regulation and imposed by the obligation of sincere cooperation (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 70). Therefore, the fact relied on by the applicant is not decisive.
41 It must also be noted that the applicant neither maintains nor demonstrates that all the requested documents are in the public domain.
42 Moreover, the legality of an EU measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted and the assessments made by the Commission must be examined solely on the basis of the information available to it at the time when the assessments were made (see judgment of 6 April 2006, Schmitz-Gotha Fahrzeugwerke v Commission, T‑17/03, EU:T:2006:109, paragraph 54 and the case-law cited).
43 In the present case, the applicant does not contest that the Commission was unaware of that disclosure when it adopted the contested decision. In her application for a confirmatory decision, the applicant merely stated that she ‘[believes] that the documents [she seeks] may be available to [her] domestically under the provisions of the Freedom of Information Acts’. It follows that the fact that the applicant came into possession of certain documents, a fact which was unknown to the Commission at the time of the contested decision, is irrelevant for the assessment of the legality of that decision.
44 In the light of all the foregoing considerations, the applicant has not established that, when applying the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001, the Commission unlawfully relied on a general presumption with regard to documents relating to infringement procedure 2014/4131 and wrongly failed, on that account, to carry out a specific examination of each document.
45 This plea must be rejected.
The second plea in law, alleging infringement of the obligation to undertake a specific and effective examination of possible partial access
46 The applicant complains that the Commission failed to undertake a specific and effective examination of the possibility of granting partial access. The Commission was not entitled to rely on a general presumption. The applicant refers to the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738).
47 The Commission, supported by Ireland, disputes the applicant’s view.
48 According to Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of the exceptions to the right of access, the remaining parts of the document are to be released.
49 It should be noted that general presumptions, such as that concerning access to documents relating to an infringement procedure, indicate that the documents covered by them do not fall within an obligation of disclosure, in full or in part, of their content (see, to that effect, judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 133; of 25 March 2015, Sea Handling v Commission,T‑456/13, not published, EU:T:2015:185, paragraph 91,and order of 25 May 2016, Syndial v Commission, T‑581/15, not published, EU:T:2016:337, paragraph 53).
50 In the present case, as was held in the context of the first plea, the Commission was fully entitled to rely on the general presumption of non-disclosure.
51 In part 3 of the contested decision, the Commission examined the possibility of granting partial access and rejected it, having regard to the fact that, in the present case, the general presumption applied to all the documents requested. It must be stated that the applicant has not put forward anything capable of refuting that reasoning, for example by demonstrating that certain parts of the documents requested are not covered by the presumption.
52 As to the applicant’s reference to paragraph 67 of the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), it is sufficient to recall that, as has already been noted in the context of the first plea, she has not established that the infringement procedure concerned by the request for access had characteristics that justified disregarding the general presumption of non-disclosure.
53 This plea must therefore be rejected.
The third plea in law, alleging a manifest error of assessment regarding the existence of an overriding public interest
54 The applicant asserts that the Commission made a manifest error of assessment in not recognising the existence of an overriding public interest.
55 The applicant admits that the purpose of her request for documents was to allow her to assess the viability of proceedings to be brought at national level.
56 She maintains, however, that she is not the only person concerned by the infringement of the rights contained in Directive 2003/88. Ireland’s failure to comply with that directive affects thousands of other social care workers. The applicant invokes the judgment of 6 July 2006, Franchet and Byk v Commission (T‑391/03 and T‑70/04, EU:T:2006:190), in particular paragraphs 110 to 113.
57 The applicant submits that there is an overriding public interest in disclosure so as to allow the public to verify the effectiveness of the infringement procedure in a case where a delay in disclosure might have the opposite effect to that sought — the protection of rights — by the infringement procedure. The Commission made a manifest error of assessment by not acknowledging the existence of such an overriding public interest and, in any event, by considering the infringement procedure to be the swiftest way to achieve a full protection of the right of workers to the social protection put in place by Directive 2003/88. For all of the foregoing reasons, the applicant contends that, in the present case, complete disclosure should be made of the entire file concerning the infringement procedure.
58 The Commission, supported by Ireland, contests the applicant’s view.
59 The Court observes that the general presumptions recognised by the case-law with regard to certain categories of documents, including the category relating to documents concerning the infringement procedure at the pre-litigation stage of that procedure, do not exclude the possibility of demonstrating that a given document, disclosure of which has been requested, is not covered by that presumption, or that there is an overriding public interest in disclosure of the document concerned in accordance with the last clause of Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 66, and of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 48).
60 It is, however, for the party requesting access to put forward specific circumstances that show that there is an overriding public interest which justifies the disclosure of the documents concerned (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 94, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 90).
61 A statement setting out purely general considerations is not sufficient for the purpose of establishing that an overriding public interest prevails over the reasons justifying the refusal to disclose the documents in question (see, to that effect, judgments of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 158; of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 93; of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 105; and of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 131).
62 In the present case, in so far as the applicant relies on the fact that it was her intention was to have access to information in order to assess the viability of proceedings to be brought at national level, it must be held that that fact does not establish the existence of a public interest, but rather the existence of a private interest (see, to that effect, judgment of 15 September 2016, Herbert Smith Freehills v Commission, T‑755/14, not published, EU:T:2016:482, paragraph 75). For the same reasons, the fact that other social care workers find themselves in the same situation as the applicant is likewise not sufficient to establish the existence of an overriding public interest capable of calling into question the application of the presumption of confidentiality.
63 As regards the reference to paragraphs 110 to 113 of the judgment of 6 July 2006, Franchet and Byk v Commission (T‑391/03 and T‑70/04, EU:T:2006:190), it should be noted that the passages of that judgment quoted by the applicant relate to the application of the exception concerning the protection of the purpose of investigations, and not to the question of the existence of an overriding public interest. Accordingly, that judgment cannot support the applicant’s claims under the third plea seeking to demonstrate the existence of an overriding public interest in disclosure of the documents requested.
64 As regards the claim that there is an overriding public interest in disclosure so as to allow the effectiveness of the infringement procedure to be established, the Court observes that general considerations, relating to the principle of transparency and the right of the public to be informed about the work of the institutions, cannot justify the disclosure of documents relating to the pre-litigation phase of an infringement procedure (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraphs 91 and 93).
65 It follows from the foregoing considerations that the applicant has not established that the Commission erred in concluding that there was no overriding public interest justifying disclosure of the documents concerning the infringement procedure in the present case.
66 The present plea must therefore be rejected.
67 As none of the pleas put forward in the action is well founded, the action must be dismissed, including the second head of claim, which is, moreover, inadmissible, given that it is not for the Court to issue directions to the institutions.
Costs
68 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
69 Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Accordingly, Ireland must bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Ms Loreto Sumner to pay the costs;
3. Orders Ireland to bear its own costs.
Delivered in open court in Luxembourg on 5 December 2018.