ORDER OF THE GENERAL COURT (Fifth Chamber)
10 July 2018 (*)
(Access to documents — Regulation (EC) No 1049/2001 — Request for access to detailed opinions issued in the course of a notification procedure under Directive 98/34/EC — Documents relating to an infringement procedure — Refusal to grant access — Disclosure after the action was brought — No need to adjudicate)
In Case T‑514/15,
Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych, established in Warsaw (Poland), represented by P. Hoffman, lawyer,
applicant,
supported by
Kingdom of Sweden, represented by C. Meyer-Seitz, A. Falk, U. Persson, N. Otte Widgren, E. Karlsson and L. Swedenborg, acting as Agents,
intervener,
v
European Commission, represented by F. Clotuche-Duvieusart and M. Konstantinidis, acting as Agents,
defendant,
supported by
Republic of Poland, represented by B. Majczyna, M. Kamejsza-Kozłowska and B. Paziewska, acting as Agents,
intervener,
ACTION pursuant to Article 263 TFEU for annulment of the Commission Decisions GESTDEM 2015/1291 of 12 June 2015 and of 17 July 2015 refusing to grant the applicant access to the detailed opinions delivered, respectively, by the Commission and the Republic of Malta in the course of notification procedure 2014/537/PL,
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, A. Dittrich and P.G. Xuereb (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 20 November 2013, in the context of infringement procedure 2013/4218, the Commission sent the Republic of Poland, and a number of other Member States, a letter of formal notice under Article 258 TFEU in which it asked the recipients to bring their national legislative frameworks governing services relating to games of chance into conformity with the fundamental freedoms of the Treaty on the Functioning of the European Union.
2 In its reply, received by the Commission on 3 March 2014, the Republic of Poland stated that it intended to notify draft legislation amending the Polish Law on games of chance to the Commission, pursuant to Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), in order to address the Commission’s concerns.
3 On 5 November 2014, the Republic of Poland notified the proposed draft law to the Commission, pursuant to Article 8 of Directive 98/34. That notification was registered under reference number 2014/537/PL.
4 On 3 and 6 February 2015 respectively, the Commission and the Republic of Malta delivered detailed opinions, within the meaning of Article 9(2) of Directive 98/34, on the notified draft law.
5 On 17 February 2015, the applicant, Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych, an organisation representing the interests of manufacturers, distributors and operators of amusement machines in Poland, requested access to the opinions delivered by the Commission and the Republic of Malta, pursuant to Article 2(1) 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).
6 On 10 March 2015, the Commission refused to grant the applicant access to the documents requested.
7 On 16 April 2015, the applicant sent the Commission a confirmatory application for access to the documents, pursuant to Article 7(2) of Regulation No 1049/2001.
8 On 12 June 2015, the Commission adopted Decision GESTDEM 2015/1291, by which it rejected the confirmatory application in so far as it concerned the Commission’s detailed opinion. On 17 July 2015, the Commission adopted Decision GESTDEM 2015/1291, by which it rejected the confirmatory application in so far as it concerned the Republic of Malta’s detailed opinion (together, ‘the contested decisions’).
9 In the contested decisions, the Commission explained that disclosure of the documents at issue would have undermined the protection granted to inspections, investigations and audits provided for in the third indent of Article 4(2) of Regulation No 1049/2001 with regard to infringement procedure 2013/4218, since those opinions were inextricably linked to that procedure.
Procedure, events subsequent to the bringing of the action and forms of order sought
10 By application lodged at the Court Registry on 1 September 2015, the applicant brought the present action.
11 By order of the President of the Fifth Chamber of the General Court of 15 February 2016, the Kingdom of Sweden was granted leave to intervene in support of the applicant and the Republic of Poland was granted leave to intervene in support of the Commission.
12 Acting on a proposal from the Judge-Rapporteur, the General Court (Fifth Chamber) decided to open the oral part of the procedure. By order of 13 July 2017, the Court ordered the Commission to produce a copy of the documents requested, under Article 91(c) of the Rules of Procedure of the General Court, indicating that, in accordance with Article 104 of those rules, those documents were not to be communicated to the applicant, the Republic of Sweden or the Republic of Poland. The Commission complied with that order within the prescribed period.
13 In the application, the applicant claims that the Court should:
– annul the contested decisions;
– order the Commission to pay the costs.
14 In its defence, the Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
15 In its statement in intervention, the Kingdom of Sweden claims that the Court should annul the contested decisions.
16 In its statement in intervention, the Polish Republic contends that the Court should dismiss the action.
17 The parties presented oral argument and their replies to the questions put by the Court at the hearing on 28 September 2017.
18 By document lodged at the Court Registry on 6 March 2018, the Commission sought a declaration from the Court that the present action had become devoid of purpose and that there was no need to rule on it, following its decision to grant to the applicant access to the two documents covered by the contested decisions. The Commission also asked the Court to order the applicant to pay the costs.
19 By order of 14 March 2018, the Court decided to reopen the oral part of the procedure and invited the other parties to submit their observations on the Commission’s application for a decision that there is no need to adjudicate.
20 In its observations, the applicant disputes that it has lost all interest in bringing an action.
21 In its observations, the Republic of Poland merely states that it is not opposed to the Commission’s request. The Kingdom of Sweden did not submit any observations on the Commission’s application for a decision that there is no need to adjudicate.
Law
22 Pursuant to Article 130(2) and (7) of the Rules of Procedure, if a party so requests, the Court may declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it. In the present case, since the Commission has requested that the Court find that the action has become devoid of purpose and that there is no longer any need to adjudicate, the Court has decided to give its decision on this request.
23 According to settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which it will be inadmissible. That purpose must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (see judgment of 14 November 2013, ICdA and Others v Commission, T‑456/11, EU:T:2013:594, paragraph 30 and the case-law cited). If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the Court on the merits cannot bring him any benefit (see judgment of 22 April 2015, Planet v Commission, T‑320/09, EU:T:2015:223, paragraph 27 and the case-law cited).
24 In the present case, it must be held that, by Decision C(2018) 1399 final of 28 February 2018, the Commission granted the applicant access to the documents covered by the contested decisions. Accordingly, those decisions no longer have any effect with regard to the applicant.
25 It is true that, in a variety of circumstances, the EU Courts have acknowledged that an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged by him has ceased to have effect in the course of proceedings. In that regard, it follows from the case-law that an applicant may retain an interest in seeking the annulment of an act of an EU institution to prevent its alleged unlawfulness recurring in the future independently of the circumstances giving rise to the action brought by that applicant (see judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 50 and the case-law cited). Similarly, an applicant may retain an interest in seeking the annulment of an act which directly affects him in order to obtain a finding, by the EU Courts, that an unlawful act has been committed against him, so that such a finding can then be the basis for any action for damages aimed at properly restoring the damage caused by the contested act (see judgment of 10 April 2013, GRP Security v Court of Auditors, T‑87/11, not published, EU:T:2013:161, paragraph 47 and the case-law cited).
26 It also follows from that case-law that the question whether an applicant retains his interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (see order of 8 June 2017, Elevolution — Engenharia v Commission, T‑691/16, not published, EU:T:2017:395, paragraph 32 and the case-law cited).
27 In the present case, the applicant claims, on the one hand, that the unlawfulness it alleges is likely to recur in the future and, on the other hand, closing the present proceedings without a judgment finding that unlawfulness would make a future action for damages on the basis of that unlawfulness very difficult or impossible.
28 As regards, first, the likelihood that the unlawfulness alleged by the applicant is liable to recur in future, it must be noted that the applicant refers to two judgments in which the Court held that the unlawfulness alleged in those cases was based on an interpretation of one of the exceptions laid down in Regulation No 1049/2001 that the institution in question was very likely to rely on again at the time of a new request for access to documents (see, to that effect, judgments of 22 March 2011, Access Info Europe v Council, T‑233/09, EU:T:2011:105, paragraph 35, and of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 32). According to the applicant, the same is true in the present case.
29 It must, however, be noted that, in the first of the cases to which the applicant refers, the request for access concerned information making it possible to identify the Member States which had put forward proposals for amendment to or re-drafting of draft legislation, while the request for access in the second case concerned the provisional compromise text on which the legislative bodies had agreed in the context of certain trilogue legislative procedures. In the light of the nature of those documents, it was indeed likely that other requests for access regarding such documents could be made to the institutions concerned in the future and that those institutions would be very likely to rely again on their interpretation of Regulation No 1049/2001, which was criticised by the applicants in those cases, at the time of those new requests.
30 In the present case, the applicant’s action concerns a refusal to grant access to detailed opinions delivered on the basis of Directive 98/34 concerning a draft law, notified by a Member State on the basis of that directive. That draft law addressed the Commission’s concerns regarding the legislation in force of that Member State, which the Commission had communicated to the latter in the context of an infringement procedure. The Commission justified its refusal to disclose those opinions by the need to protect the purpose of that infringement procedure. It is unlikely that such an atypical situation would recur in the future.
31 It is true that the applicant claims that the same situation arose in Case T‑750/17, which involved the same parties as in the present case. However, it follows from the evidence put forward by the applicant in that regard that there is a close link between the facts giving rise to the present case and those giving rise to Case T‑750/17. It is apparent from that evidence that, following a letter of formal notice addressed to it by the Commission in the context of infringement procedure 2013/4218, the Republic of Poland, on the basis of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1), which replaced Directive 98/34, notified subsequent draft legislation amending the Polish Law on games of chance, in order to address the concerns expressed in the letter of formal notice. Moreover, it follows that that notification gave rise to two opinions, delivered by the Commission and the Republic of Malta on the basis of Directive 2015/1535, and that the Commission refused to grant a request for access to those opinions, which was submitted to it by the applicant, on the same ground as that on which the contested decisions were based, namely the need to protect the purpose of infringement procedure 2013/4213 and that it was that decision refusing to grant access which was contested by the applicant in Case T‑750/17.
32 Given what has been set out above, it must be held that Case T‑750/17 belongs to the same factual context as the case giving rise to the present action. Consequently, that case does not demonstrate in any way, contrary to what the applicant claims, that it is particularly likely that a situation like the one at issue in the present case would occur in the future independently of the circumstances of the present case, within the meaning of the case-law cited in paragraph 25 above.
33 It is also necessary to reject the applicant’s additional argument that a decision to close proceedings without judgment allows the Commission to escape effective judicial review, since the Commission can always decide to grant access to documents requested when it realises that it is likely to face legal proceedings before the Court, following an initial refusal to grant access. To accept such an argument would be to consider that, without the need to establish the specific circumstances of each particular case, any applicant whose request for access to documents was initially refused could seek a ruling against the institution concerned by the request, even though its request had been granted after bringing an action before the EU Courts.
34 Second, as regards the potential interest of a judgment declaring the conduct alleged by the applicant to be unlawful as regards a future action for damages arising from that unlawful conduct, it must be noted, in the first place, that the applicant merely invokes the possibility of actions brought against the Commission for non-contractual liability of the European Union without specifying whether it or its members truly intend to make use of that possibility. In the second place, it must be held that, although the applicant claims that the refusal to grant access to the documents in question prevented both it and its members from convincing the Polish courts that the restrictions contained in the draft legislation, notified in 2014 by the Republic of Poland, infringed the principle of proportionality and that they ought to refer questions to the Court of Justice in that regard for a preliminary ruling, it does not rely in that regard on any precise, specific and verifiable evidence. In the third place, as regards the harm allegedly suffered, the applicant merely claims that actions were dismissed and that the defendants were convicted, without providing the slightest detail. Finally, it must be noted that, contrary to what the applicant claims, the Court would be entitled to rule on the lawfulness of the contested decisions in the context of an action for damages brought by the applicant or one or another of its members seeking compensation for harm which may have resulted from those decisions. The fact that, in such a case, it would be for the applicant to establish that those decisions were unlawful cannot be considered, contrary to what the applicant claims, to be an unjustifiable burden, given that there would be nothing to prevent the applicant or its members from relying, in such an action, on the arguments that the applicant already submitted to the Court in the context of the present case.
35 It follows that there is no longer any need to adjudicate in the present case.
Costs
36 According to Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
37 Given the circumstances of the present case, the Court considers that it is appropriate to rule that both the applicant and the Commission are to bear their own costs.
38 Under Article 138(1) of the Rules of Procedure, the Kingdom of Sweden and the Republic of Poland, which have intervened in the proceedings, are to bear their own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
Hereby orders:
1. There is no longer any need to adjudicate on the action.
2. Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych and the European Commission shall bear their own costs.
3. The Kingdom of Sweden and the Republic of Poland shall bear their own costs.
Luxembourg, 10 July 2018.