JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

14 October 1999 (1)

(Transparency — Access to information — Commission Decision 94/90/ECSC, EC,Euratom on public access to Commission documents — Scope of the exceptionrelating to protection of the public interest — Draft reasoned opinion underArticle 169 of the EC Treaty (now Article 226 EC))

In Case T-309/97,

The Bavarian Lager Company Ltd, a company incorporated under English law,whose registered office is in Lancashire, United Kingdom, represented by StephenHornsby, Solicitor, with an address for service in Luxembourg at the Chambers ofAndré Marc, 36-58 Rue Charles Martel,

applicant,

v

Commission of the European Communities, represented by Carmel O'Reilly,Ulrich Wölker and, at the hearing, Xavier Lewis, of its Legal Service, acting asAgents, with an address for service in Luxembourg at the office of Carlos Gómezde la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

United Kingdom of Great Britain and Northern Ireland , represented by JohnCollins and, at the hearing, Jessica Simor, of the Treasury Solicitor's Department,

acting as Agents, with an address for service in Luxembourg at the British Embassy,14 Boulevard Roosevelt,

intervener,

APPLICATION for the annulment of a Commission decision of 18 September 1997refusing the applicant access to a draft reasoned opinion drawn up by theCommission under Article 169 of the EC Treaty (now Article 226 EC),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: R.M. Moura Ramos, President, V. Tiili and P. Mengozzi, Judges,

Registrar: B. Pastor, Principal Administrator,

having regard to the written procedure and further to the hearing on25 February 1999,

gives the following

Judgment

1.

    In the Final Act of the Treaty on European Union signed in Maastricht on7 February 1992, the Member States incorporated a Declaration (No 17) on theright of access to information, worded as follows:

'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.

    On 2 June 1993 the Commission submitted Communication 93/C 166/04 onopenness in the Community (OJ 1993 C 166, p. 4), in which the principlesgoverning access to documents are set out.

3.

    On 6 December 1993 the Council and the Commission approved a joint code ofconduct concerning public access to Council and Commission documents (OJ 1993L 340, p. 41; hereinafter 'the Code of Conduct‘) and each undertook to take stepsto implement the principles laid down by the Code of Conduct before1 January 1994.

4.

    For the purpose of complying with that undertaking, the Commission adopted on8 February 1994, on the basis of Article 162 of the EC Treaty (now Article 218EC), Decision 94/90/ECSC, EC, Euratom on public access to Commissiondocuments (OJ 1994 L 46, p. 58). Article 1 of Decision 94/90 adopts the Code ofConduct, the text of which is annexed to the decision.

5.

    The Code of Conduct lays down 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 itsmedium, which contains existing data and is held by the Commission or theCouncil.‘

6.

    After briefly setting out the rules governing the submission and processing ofapplications for access to documents, the Code of Conduct describes the procedureto be followed where it is proposed to reject such a request:

'Where the relevant departments of the institution concerned intend to advise theinstitution to reject an application, they will inform the applicant thereof and tellhim that he has one month to make a confirmatory application to the institutionfor that position to be reconsidered, failing which he will be deemed to havewithdrawn his original application.

If a confirmatory application is submitted, and if the institution concerned decidesto refuse to release the document, that decision, which must be made within amonth of submission of the confirmatory application, will be notified in writing tothe applicant as soon as possible. The grounds for the decision must be given, andthe decision must indicate the means of redress that are available, i.e. judicialproceedings and complaints to the ombudsman under the conditions specified in,respectively, [Article 173 of the EC Treaty (now, after amendment, Article 230 EC)and Article 138e of the EC Treaty (now Article 195 EC)].‘

7.

    The grounds which may be relied upon by an institution to reject an application foraccess to documents are listed in the Code of Conduct in the following terms:

'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, Commission Communication 94/C 67/03 on improved access todocuments (OJ 1994 C 67, p. 5), which explains the conditions for implementationof Decision 94/90, was published. It is apparent from that communication that'anyone may ... ask for access to any unpublished Commission document, includingpreparatory documents and other explanatory material‘. As to the exceptionsprovided for in the Code of Conduct, the communication states that 'theCommission may take the view that access to a document should be refusedbecause its disclosure could undermine public and private interests and the goodfunctioning of the institution ...‘. It is also stated that 'there is nothing automaticabout the exemptions, and each request for access to a document will beconsidered on its own merits‘.

Facts

9.

    The applicant company was formed on 28 May 1992 to import German beer forsale in public houses in the United Kingdom, principally in the north of England.

10.

    It was, however, unable to sell its product, because a large number of public housesin the United Kingdom are bound by exclusive purchasing agreements whichrequire them to obtain their supplies of beer from particular breweries.

11.

    Under United Kingdom regulations relating to the supply of beer, namely theSupply of Beer (Tied Estate) Order 1989 (S.I. 1989 No 2390), United Kingdombreweries with an interest in more than 2 000 public houses are required to allowthe tenants of those public houses to purchase a beer from another brewery. Under Article 7(2)(a) of the Order, such beer must be cask-conditioned beer withan alcoholic strength exceeding 1.2% by volume. This provision is commonlyknown as the guest beer provision (hereinafter 'the GBP‘).

12.

    Article 7(3) of the Order defines 'cask-conditioned beer‘ as 'beer which undergoesfermentation in the container from which it is served for consumption‘. Most beersproduced outside the United Kingdom undergo filtration before the end of thebrewing process and therefore do not continue to ferment once they have been putin a keg. Consequently, they cannot be regarded as 'cask-conditioned beer‘ withinthe meaning of the GBP and are thus not covered by that provision.

13.

    Since the applicant took the view that the GBP constituted a measure having anequivalent effect to a quantitative restriction on imports and was accordinglyincompatible with Article 30 of the EC Treaty (now, after amendment, Article 28EC), it lodged a complaint with the Commission by letter of 3 April 1993.

14.

    Following its investigation, the Commission decided on 12 April 1995 to initiate aprocedure against the United Kingdom under Article 169 of the EC Treaty (nowArticle 226 EC). On 28 September 1995 it notified the applicant of thatinvestigation and informed it that it had sent a letter of formal notice to the UnitedKingdom on 15 September 1995. On 26 June 1996 the Commission decided toissue a reasoned opinion to the United Kingdom and, on 5 August 1996, it releaseda press statement announcing that decision.

15.

    On 15 March 1997 the United Kingdom Department of Trade and Industryannounced a proposal to amend the GBP which would permit bottle-conditionedbeer to be sold as a guest beer in the same way as cask-conditioned beer. TheCommission twice suspended — on 19 March 1997 and 26 June 1997 — its decisionto issue a reasoned opinion to the United Kingdom and in a letter of 21 April 1997the Head of Unit 2 'Application of Articles 30 to 36 of the EC Treaty(notifications, complaints, infringements, etc.) and removal of trade barriers‘ ofDirectorate B 'Free movement of goods and public procurement‘ of theDirectorate-General for the Internal Market and Financial Services (DG XV)informed the applicant that, in view of the proposed amendment of the GBP, theprocedure under Article 169 of the Treaty had been suspended and that thereasoned opinion had not been served on the United Kingdom. He stated that thatprocedure would be brought to a close as soon as the amended GBP entered intoforce. The new version of the GBP became applicable on 22 August 1997. Thereasoned opinion was therefore never sent to the United Kingdom and theCommission finally decided on 10 December 1997 to take no further action in theinfringement procedure.

16.

    By a fax sent on 21 March 1997 the applicant's lawyers asked the Director-Generalof DG XV for a copy of the 'reasoned opinion‘, in accordance with the Code ofConduct. By letter of 16 May 1997, Mr Mogg, the Director-General of DG XV,refused that request on the ground that, 'as an internal rule of the Commission,an EC Commission's reasoned opinion is confidential except in the case of aspecific decision to release it to the public‘.

17.

    By letter of 27 May 1997 the applicant's lawyers reiterated their request, relying onthe judgment of the Court of First Instance in Case T-194/94 Carvel and GuardianNewspapers v Council [1995] ECR II-2765 and on the principle of goodadministration. By letter of 9 July 1997 Mr Mogg again refused the request, relyingthis time on the Code of Conduct and the exception relating to protection of thepublic interest. Specifically, he maintained that disclosure of the document inquestion could:

—    harm the proper administration of justice, in particular the implementationof Community law;

—    compromise the treatment of infringements of that law; and

—    undermine the climate of mutual confidence required for a full and frankdiscussion between the Commission and a Member State with a view toensuring compliance by that State with its Treaty obligations.

18.

    The applicant did not accept the Commission's views set out above and, by letterof 7 August 1997 from its lawyers, lodged a confirmatory application with theSecretary-General of the Commission, in accordance with the procedure laid downby the Code of Conduct.

19.

    By letter of 18 September 1997 (hereinafter 'the contested decision‘), theSecretary-General of the Commission confirmed the refusal of the application sentto DG XV and the reasons given therefor, in the following terms:

'Having examined your request, I have to confirm Mr Mogg's refusal to give youaccess to this document where disclosure could undermine the protection of thepublic interest, in particular Commission inspections and investigation tasks. Thisexception is expressly foreseen in the Code of Conduct concerning public access toCommission and Council documents, adopted by the Commission on8 February 1994.

As Mr Mogg already explained to you in his letter of 9 July 1997, it is indeedessential for the Commission to be able to investigate matters with which it isconcerned as guardian of the Treaty, whilst respecting the confidential nature ofsuch proceedings. In the matter of investigation of infringements, sincerecooperation and a climate of mutual confidence between the Commission and theMember State concerned are required, which allow for both parties to engage ina process of negotiation and compromise with the search for a settlement to adispute at a preliminary stage.

The Court of First Instance itself considered in Case T-105/95 (WWF vCommission) that ”the confidentiality which the Member States are entitled toexpect of the Commission in such circumstances warrants, under the heading ofprotection of the public interest, a refusal of access to documents relating toinvestigations which may lead to an infringement procedure, even where a periodof time has elapsed since the closure of the investigation” (par. 63).

It must also be emphasised that investigation into a possible infringement is stillcontinuing, since the Commission decided to defer sending a reasoned opinion tothe British authorities.

I remind you that by way of contrast with the optional exception of the protectionof the Commission's interest in the confidentiality of its proceedings, this mandatoryexception of protection of public interest does not require a balance of interests. As stated by the Court in the abovementioned case in its paragraph 58, ”theCommission is obliged to refuse access to documents falling under any one of theexceptions contained in this category once the relevant circumstances are shown toexist”.‘

Procedure and forms of order sought

20.

    It was in those circumstances that, by application lodged at the Registry of theCourt of First Instance on 9 December 1997, the applicant brought this action.

21.

    By a document lodged at the Court Registry on 25 May 1998, the United Kingdomof Great Britain and Northern Ireland applied for leave to intervene in support ofthe form of order sought by the defendant. By order of 7 July 1998 the Presidentof the Third Chamber of the Court of First Instance granted such leave.

22.

    Since the applicant did not lodge a reply and the intervener waived its right tolodge a statement in intervention, the written procedure came to an end on9 September 1998.

23.

    The applicant claims that the Court should:

—    annul the decision of the Commission contained in the letters of16 May 1997, 9 July 1997 and 18 September 1997 in so far as it refusesaccess to the 'reasoned opinion‘ of the Commission formulated followingan investigation into the application of Article 7(3) of the Supply of Beer(Tied Estate) Order 1989 (S.I. 1989 No 2390);

—    order the Commission to pay the costs.

24.

    The defendant contends that the Court should:

—    declare the action inadmissible in so far as it refers to a decision of16 May 1997 and 9 July 1997;

—    dismiss the action;

—    order the applicant to pay the costs.

25.

    The Government of the United Kingdom of Great Britain and Northern Ireland,the intervener, contends that the Court should grant the forms of order sought bythe Commission.

26.

    At the hearing the applicant withdrew its claim for annulment of a Commissiondecision contained in the letters dated 16 May 1997 and 9 July 1997.

Substance

The sole plea, alleging breach of Decision 94/90

Arguments of the parties

27.

    The applicant bases its submissions on the judgment in Case T-105/95 WWF UK vCommission [1997] ECR II-313 ('the WWF judgment‘), in which the Court of FirstInstance stated that Decision 94/90 constituted the Commission's response to thecalls made by the European Council to reflect at Community level the right ofcitizens, recognised in the domestic legislation of most of the Member States, tohave access to documents held by public authorities. The applicant also refers toparagraphs 34 to 37 of the judgment of the Court of Justice in Case C-58/94Netherlands v Council [1996] ECR I-2169 and to the Opinion of Advocate GeneralTesauro in that case (points 14, 15 and 16). According to the applicant, the Codeof Conduct and the WWF judgment, interpreted correctly, must mean the following:

—    access to documents is a right; a person applying for a document is notrequired to invoke a legitimate interest in support of his request;

—    the aim of transparency is an end in itself; the Commission can deny accessto a document by relying on the mandatory public interest exception onlyif it proves that that access may actually 'undermine‘ the public interest;

—    the public interest is 'undermined‘ only if it is established that disclosureof the document requested could result in significant harm to a third partyor the general public, the public interest exception not being designed toprotect the Commission's interests;

—    the Code of Conduct does not allow the Commission to refuse disclosure ofentire categories of documents or to create internal rules under whichcertain categories of documents are confidential per se. Each applicationmust be considered in the light of the applicable provisions of that code.

28.

    The applicant states that the Commission's analysis of the concept of public interestin its letter of 9 July 1997 is misguided on two counts. First, the overriding publicinterest is that of proper administration. The Commission, in its role as guardianof the Treaty, is required to carry out its functions effectively and in the interests

of the Community, and it must be seen to be doing so by the peoples of Europe. In the case of the GBP, there is at least the appearance that the Commission hasfailed to ensure compliance by the United Kingdom with its obligations under theEC Treaty. The public interest demands that the reasoned opinion, which reflectsthe formal view of the Commission as to whether the GBP in its original form wasconsistent with Community law, be disclosed, a step which would ensure fulltransparency of the decision-making process and generate confidence in theworking of the institution.

29.

    Second, the reference by the Commission to the confidentiality which the UnitedKingdom must enjoy as a Member State subject to possible infringementproceedings is irrelevant in the present case. The Commission specifically statedin its letter of 16 May 1997 that the infringement procedure would be brought toa close as soon as the proposed amendment to the GBP entered into force, achange which occurred on 22 August 1997. The Court of First Instance held atparagraph 63 of the WWF judgment that Member States subject to investigationswhich could lead to the opening of infringement procedures were entitled to expectthat the Commission would respect confidentiality. Accordingly, the confidentialityargument can be relied on only in circumstances where the infringementproceedings are still only in prospect and not where they have already beenbrought to a close.

30.

    The Commission disputes the applicant's assertion that the public interest exceptionis not made out in the present case. Referring to the Community case-law, inparticular to the WWF judgment, the Commission acknowledges that, in order tobe able to refuse access to documents by invoking that exception, it is obliged toestablish, first, the existence of relevant circumstances for the exception (Carvel andGuardian Newspapers, paragraph 64, and WWF, paragraph 58) and, second, the linkbetween the documents at issue and those circumstances (WWF, paragraph 64). It points out that the Code of Conduct lists various aspects of the public interest,namely public security, international relations, monetary stability, court proceedingsand inspections and investigations. The disclosure of documents related to thosenotions is presumed to undermine the public interest. Moreover, the Courtexpressly stated in the WWF judgment that documents relating to investigationswhich could lead to an infringement procedure came under the protection of thepublic interest and in particular under the notion of inspections and investigations(paragraph 63).

31.

    As regards the document at issue, the Commission states that an investigation intoa possible infringement of Community law was in progress when the applicantrequested a copy of the reasoned opinion, which is, by definition, a document'involving‘ an infringement procedure, and thus falls within the public interestexception. It therefore did not refuse to disclose entire categories of documents,but refused access to the document at issue because of its nature.

32.

    The abovementioned exception is applicable by reason of the confidentiality whichthe Member States are entitled to expect from the Commission when it investigatesa possible infringement of Community law; the WWF judgment recognised thatconfidentiality as a legitimate expectation. The Commission takes the view that theobjective of the procedure under Article 169 of the Treaty is to ensure that theMember States comply with Community law by means, initially, of a process ofnegotiation centred around sincere dialogue with the State concerned. The interestof the Member States and that of the investigation itself require that dialogue totake place without any publicity at all and those States to be assured thatcompromises may be reached in confidence.

33.

    Furthermore, the Commission contests the applicant's interpretation of the WWFjudgment and of the Code of Conduct. It maintains that there is nothing in thegrounds of that judgment to support the conclusion that confidentiality may beinvoked only where infringement proceedings are merely in prospect. As regardsthe Code of Conduct, that code provides for two categories of exceptions to thegeneral principle that citizens are to have access to Commission documents. TheCommission is obliged to refuse access to documents falling within one of themandatory exceptions, which include the public interest exception, whereas it hasa degree of latitude in the case of the discretionary exceptions. The exercise ofthat discretion entails the striking of a balance between the interest of the citizenin obtaining access to the documents and the interest which the Commission mayhave in maintaining the confidentiality of its proceedings. Thus the Commission,while conceding that the applicant does not have to prove an interest in obtainingthe documents requested, maintains that it is wrong in stating that 'the overridingpublic interest is that of proper administration‘ or in invoking its specificcommercial interest inasmuch as no balancing of interests is required in the presentcase. It is precisely by relying on the public interest exception when thecircumstances justifying it are established that proper administration is safeguarded.

34.

    At the hearing, the Commission clarified its position by explaining that the publicinterest to be protected in the present case is the proper functioning of theCommunity. The objective of the procedure under Article 169 of the Treaty canbe achieved only if all the Member States are assured that letters of formal noticeand reasoned opinions are disclosed solely to the Court of Justice. In the absenceof confidentiality, the opportunities for constructive discussion and friendlysettlement of disputes would be restricted, giving rise to an increased number ofproceedings before the Court of Justice. The Commission points out that fewerthan 10% of the cases in which it initiates a procedure under Article 169 of theTreaty are brought before the Court of Justice. It maintains, finally, that theinterest of all Community citizens, which lies in the Community institutionsfunctioning effectively and there being a coherent legal system throughout theUnion, would not be safeguarded if a reasoned opinion were made public, even inthe case of an infringement procedure which had already been brought to a close.

35.

    The Government of the United Kingdom of Great Britain and Northern Irelandagrees with the Commission's position.

Findings of the Court

36.

    Decision 94/90 is a measure which grants citizens a right of access to documentsheld by the Commission (WWF, paragraph 55, Case T-83/96 van der Wal vCommission [1998] ECR II-545, paragraph 41, and Case T-124/96 Interporc vCommission [1998] ECR II-231, paragraph 46). It is intended to give effect to theprinciple of the widest possible access for citizens to information with a view tostrengthening the democratic character of the institutions and the trust of the publicin the administration (see, with regard to the corresponding provisions of CouncilDecision 93/731/EC of 20 December 1993 on public access to Council documents(OJ 1993 L 340, p. 43), Case T-174/95 Svenska Journalistförbundet v Council [1998]ECR II-2289, paragraph 66).

37.

    Furthermore, the Court has previously held that it is clear from the scheme ofDecision 94/90 that that decision applies generally to requests for access todocuments and that any person may ask for access to any unpublished Commissiondocument without being required to give a reason for the request (Interporc, citedabove, paragraph 48, and see, with regard to the corresponding provisions ofDecision 93/731, Svenska Journalistförbundet, paragraph 109).

38.

    However, two categories of exceptions to the general principle that citizens are tohave access to Commission documents are set out in the Code of Conduct adoptedby the Commission in Decision 94/90. The first category, which includes theexception relied on by the Commission in the present case, is worded in mandatoryterms, providing that 'the institutions will refuse access to any document wheredisclosure could undermine [inter alia] the protection of the public interest (publicsecurity, international relations, monetary stability, court proceedings, inspectionsand investigations)‘.

39.

    It is to be remembered that the exceptions to access to documents fall to beinterpreted and applied restrictively so as not to frustrate application of the generalprinciple of giving the public 'the widest possible access to documents held by theCommission‘ (WWF, paragraph 56, van der Wal, paragraph 41, and Interporc,paragraph 49).

40.

    In the contested decision, the Commission states that disclosure of the reasonedopinion 'could undermine the protection of the public interest, in particularCommission inspections and investigation tasks‘. It expressly mentions that 'in thematter of investigation of infringements, sincere cooperation and a climate ofmutual confidence between the Commission and the Member State concerned arerequired, which allow for both parties to engage in a process of negotiation and

compromise with the search for a settlement to a dispute at a preliminary stage‘. In so doing, the Commission refers principally to the WWF judgment.

41.

    However, contrary to the Commission's assertions, it does not follow from the case-law, in particular the WWF judgment, that all documents linked to infringementprocedures are covered by the exception relating to protection of the publicinterest. According to that judgment, the confidentiality which the Member Statesare entitled to expect of the Commission warrants, under the heading of protectionof the public interest, a refusal of access to documents relating to investigationswhich may lead to an infringement procedure, even where a period of time haselapsed since the closure of the investigation (WWF, paragraph 63).

42.

    In that regard, it is wrong in fact and in law to classify the document to which theapplicant seeks access as a 'reasoned opinion‘. The Commission has stated, inreply to a written question put by the Court, that the members of the Commissiondid not have before them a draft of the reasoned opinion when, on 26 June 1996,they adopted the decision to deliver that reasoned opinion. The draft was in factdrawn up by the administration, under the Commissioner responsible for the areain question, after the Commission had adopted the decision to deliver a reasonedopinion. Thus, it was the Commission staff who drew up the document to be sentto the United Kingdom as a reasoned opinion. Subsequently, on 19 March 1997,the Commission suspended its decision to send a reasoned opinion to the UnitedKingdom and that document was, in the end, never signed by the Commissionerresponsible or communicated to that Member State. The procedure initiated underArticle 169 of the Treaty thus never reached the stage where the Commission'deliver[s] a reasoned opinion‘; the opinion therefore remained a purelypreparatory document.

43.

    Although the Commission has not disputed the classification of the document atissue in the present case as a 'reasoned opinion‘, it appears necessary to correctthat misclassification. The action cannot be determined on the basis of amisrepresentation of the document at issue. A misrepresentation of that kindwould amount to an error of law and consequently vitiate the Court's judgment(see the judgments in Case C-53/92 P Hilti v Commission [1994] ECR I-667,paragraph 42, and in Case C-362/95 P Blackspur DIY and Others v Council andCommission [1997] ECR I-4775, paragraph 29, and the orders in Case C-55/97 PAIUFFASS and AKT v Commission [1997] ECR I-5383, paragraph 25, and in CaseC-140/96 P Dimitriadis v Court of Auditors [1997] ECR I-5635, paragraph 35).

44.

    It follows that the question of access must be considered having regard to thepreparatory nature of the document at issue. It will be remembered that accordingto Communication 94/C 67/03 of 4 March 1994, 'anyone may ... ask for access toany unpublished Commission document, including preparatory documents and otherexplanatory material‘.

45.

    Taking account of those matters, it is therefore necessary to consider whether theCommission is entitled to rely on the exception relating to protection of the publicinterest and, if so, to what extent, in order to refuse to grant access to thedocument requested by the applicant.

46.

    In the present case, having regard to the preparatory nature of the document atissue and to the fact that, when access to it was requested, the Commission hadsuspended its decision to deliver the reasoned opinion, it is clear that the procedureunder Article 169 of the Treaty was still at the stage of inspection and investigation. As the Court stated in the WWF judgment, the Member States are entitled toexpect confidentiality from the Commission during investigations which may leadto an infringement procedure (paragraph 63). The disclosure of documents relatingto the investigation stage, during the negotiations between the Commission and theMember State concerned, could undermine the proper conduct of the infringementprocedure inasmuch as its purpose, which is to enable the Member State to complyof its own accord with the requirements of the Treaty or, if appropriate, to justifyits position (see Case C-191/95 Commission v Germany [1998] ECR I-5449,paragraph 44), could be jeopardised. The safeguarding of that objective warrants,under the heading of protection of the public interest, the refusal of access to apreparatory document relating to the investigation stage of the procedure underArticle 169 of the Treaty.

47.

    It follows from all of the foregoing that the sole plea cannot be upheld and,therefore, that the application must be dismissed.

Costs

48.

    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. As the applicant has been unsuccessful, it will be ordered to pay thecosts incurred by the defendant, in accordance with the latter's application.

49.

    Under Article 87(4) of the Rules of Procedure, the intervener is to bear its owncosts.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby:

1.    Dismisses the application;

2.    Orders the applicant to bear, in addition to its own costs, those of thedefendant;

3.    Orders the United Kingdom of Great Britain and Northern Ireland to bearits own costs.

Moura RamosTiili Mengozzi

Delivered in open court in Luxembourg on 14 October 1999.

H. Jung

R.M. Moura Ramos

Registrar

President

1: Language of the case: English.