ORDER OF THE GENERAL COURT (Eighth Chamber)
12 April 2011 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Implied refusal of access – Express decision adopted after the action was brought – No need to adjudicate)
In Case T‑395/10,
Stichting Corporate Europe Observatory, established in Amsterdam (Netherlands), represented by S. Crosby, Solicitor, and S. Santoro, lawyer,
applicant,
v
European Commission, represented by F. Clotuche-Duvieusart and C. ten Dam, acting as Agents,
defendant,
APPLICATION for annulment of the Commission’s implied decision refusing to grant the applicant access to certain documents concerning relations between the European Union and the Republic of India,
THE GENERAL COURT (Eighth Chamber),
composed of L. Truchot, President, M.E. Martins Ribeiro (Rapporteur) and H. Kaninnen, Judges,
Registrar: E. Coulon,
makes the following
Order
1 By email sent to the Commission of the European Communities on 5 June 2009 and registered the same day by the Commission, the applicant, Stichting Corporate Europe Observatory, requested, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), access to certain documents concerning relations between the European Union and the Republic of India.
2 On 26 March 2010, the applicant reminded the Commission that it had failed in its obligation to respond to its inital request and requested it, therefore, to reply to it by 9 April 2010.
3 In the absence of any reply by the Commission, the applicant sent, by letter of 13 April 2010, a confirmatory application within the meaning of Article 7(4) of Regulation No 1049/2001.
4 By letter of 29 April 2010, the Commission granted partial access to some of the requested documents.
5 By confirmatory application of 21 May 2010, the applicant challenged the fact that some paragraphs of certain documents had been deleted and that some annexes had been withdrawn, whereas those documents had been sent to third parties in their entirety. The applicant accordingly requested the Commission to reconsider its position concerning partial access to the requested documents by transmitting those documents to it without deletions or omissions.
6 By letter of 21 June 2010, the Commission informed the applicant that, in accordance with Article 8(2) of Regulation No 1049/2001, it would defer its reply until 12 July 2010, on the ground that it had not been able to gather all the elements needed to carry out a full analysis in order to take a final decision.
7 By letter of 12 July 2010, the Commission informed the applicant that it had still not taken a final decision.
Forms of order sought by the parties
8 In the application, the applicant claims that the Court should:
– annul the implied Commission decision refusing to grant the applicant access to the documents requested in its confirmatory application of 21 May 2010;
– order the Commission to pay the costs.
9 In the defence, the Commission contends that the Court should:
– dismiss the application as devoid of purpose;
– rule on the costs.
Law
10 By its application seeking a declaration that there is no need to adjudicate, the Commission raises a preliminary issue on which, according to Article 114(3) of the Rules of Procedure of the Court, a decision should be made without opening the oral procedure, since the Court considers that it has sufficient information on the basis of the documents before it.
11 The present action concerns an application for annulment of the Commission’s implied decision refusing to grant access to the documents requested in the applicant’s confirmatory application of 21 May 2010.
12 However, after the present action was brought, the Commission, on 6 December 2010, adopted an express decision in reply to the confirmatory application of 21 May 2010.
13 The applicant considers, in its observations lodged at the Registry of the Court on 16 December 2010 in response to the Commission’s defence in which it seeks a declaration that there is no need to adjudicate, that the consequence of the adoption of the abovementioned express decision is that the present action has become devoid of purpose, meaning that the applicant has no objections to the Commission’s application for a declaration that there is no need to adjudicate.
14 It follows that the present action has become devoid of purpose.
15 In those circumstances, it must be held that there is no need to adjudicate on the present action.
Costs
16 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
17 It must be held that it was the Commission’s failure to reply within the prescribed period to the applicant’s confirmatory application which led the applicant to bring the present action. It is therefore justified on the basis of its conduct that the Commission be ordered to bear its own costs and to pay those incurred by the applicant.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1. There is no need to adjudicate on the action.
2. The European Commission shall pay the costs.
Luxembourg, 12 April 2011.