Case T‑300/10

Internationaler Hilfsfonds eV

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to contract LIEN 97‑2011 — Partial refusal of access — Determination of the subject-matter of the initial application — Exception relating to the protection of privacy and the integrity of the individual — Exception relating to protection of the decision-making process — Principle of sound administration — Concrete and individual examination — Duty to state reasons)

Summary of the Judgment

1.      Procedure — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Reference to a previous judgment of the General Court — Plea inadmissible

(Rules of Procedure of the General Court, Arts 44(1)(c), and 48(2))

2.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Duty of the institution to assist the applicant before dismissing his request

(European Parliament and Council Regulation No 1049/2001, Art. 6(2), (7) and (8))

3.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the principle of access to documents — Protection of the public interest — Scope — Requirement that the institution should examine the documents specifically and individually

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), (3) and (6))

4.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of privacy and the integrity of the individual — Scope — Duty to assess in conformity with EU legislation on the protection of personal data — Provisions of Regulation No 45/2001 fully applicable to any request for access to documents containing personal data

(Art. 6 TEU; European Parliament and Council Regulations No 45/2001, Art. 1(1), (8), (18), and No 1049/2001, Art. 4(1)(b))

5.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of privacy and the integrity of the individual — Disclosure of documents concerning the applicant himself — Lawfulness — Limits — Protection of privacy and the integrity of third parties

6.      European Union — Institutions — Right of public access to documents — Exceptions to the right of access to documents — Protection of privacy and the integrity of the individual — Duty to assess in conformity with EU legislation on the protection of personal data — Non-application of the exception to persons not deserving protection or by reason of the existence of a higher public interest — Not permissible

(European Parliament and Council Regulations No 45/2001, Art. 4(1)(b), and No 1049/2001, Art. 4(1)(b))

7.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Protection of documents drawn up under a procedure already completed — Scope

(European Parliament and Council Regulation No 1049/2001, Art. 4(3), second para.)

8.      Acts of the institutions — Statement of reasons — Obligation — Scope and limits

(Art. 296 TFEU)

9.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Duty to state reasons — Scope

(Art. 296 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4)

1.      A plea by an applicant merely inviting the General Court to verify whether the findings in an earlier judgment are applicable by analogy in the present case does not comply with the formal requirements of Article 44(1)(c) of the Rules of Procedure, which provides that pleas raised at the application stage must be set out in a summary manner. Such a plea must therefore be declared inadmissible.

(see paras 41-43)

2.      The institution concerned by a request for access to documents is required to carry out a full examination of all the documents referred to in the application for disclosure. Such a requirement applies, in principle, not only when dealing with a confirmatory application, within the meaning of Article 8 of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, but also when dealing with an initial application, within the meaning of Article 7 of the said regulation.

Moreover, it is clear from the wording of Article 6(2) of the said regulation, and in particular from the use of the verbs ‘ask’ and ‘assist’, that the mere finding that the application for access was insufficiently precise, whatever the reasons, must lead the addressee institution to make contact with the applicant in order to define as closely as possible the documents requested.

The Commission thus commits a manifest error of assessment as to the determination of the subject-matter of the initial application and, consecutively, an infringement of the Commission’s obligation to give that application a full examination, if it does not request the applicant to define more precisely the documents requested in the initial application and the confirmatory application, before adopting the decision to refuse communication of the documents requested.

(see paras 69, 84, 85, 87)

3.      The examination required for dealing with an application for access to documents on the basis of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, must be concrete in character. First, the mere fact that a document concerns an interest protected by an exception cannot be sufficient to justify the application of the latter. Such an application can, in principle, be justified only in the case where the institution has previously assessed, first, whether access to the document would specifically and actually undermine the interest protected and, second, in the cases referred to in Article 4(2) and (3) of Regulation No 1049/2001, whether there was no higher public interest justifying the disclosure of the document referred to. Second, the risk of a protected interest being undermined must be reasonably foreseeable and not merely hypothetical.

In principle, a concrete, individual examination of each document is also necessary where, even if it is clear that a request for access refers to documents covered by an exception, only such an examination can enable the institution to assess whether it is possible to grant the applicant partial access under Article 4(6) of Regulation No 1049/2001. In the context of applying the Code of conduct on public access to Council and Commission documents, an assessment relating to documents which is carried out by reference to categories rather than on the basis of the actual information contained in those documents must be regarded as insufficient, since the examination required of an institution must enable it to assess specifically whether an exception invoked actually applies to all the information contained in those documents.

(see paras 91, 92, 133, 144, 149, 150)

4.      Article 4(1)(b) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, lays down an exception to access to a document in cases where disclosure would undermine the protection of privacy and the integrity of the individual, in particular in accordance with EU legislation regarding the protection of personal data. That provision is indivisible, and requires that any undermining of privacy and the integrity of the individual must always be examined and assessed in conformity with that legislation, and in particular with Regulation (EC) No 45/2001, on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. Regulations Nos 45/2001 and 1049/2001 were adopted on dates very close to each other. They do not contain any provisions granting one regulation primacy over the other. In principle, their full application should be ensured.

In that regard, it is clear from the first sentence of recital 15 of Regulation No 45/2001 that the EU legislature has pointed to the need to apply Article 6 TEU and, by that means, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, where such processing is carried out by Community institutions or bodies in the exercise of activities falling outside the scope of this Regulation, in particular those laid down in Titles V and VI of the EU Treaty in its version prior to the Treaty of Lisbon. By contrast, such a reference was not found necessary for processing carried out in the exercise of activities within the scope of that regulation, given that, in such cases, it is clearly Regulation No 45/2001 itself which applies.

It follows that, where a request based on Regulation No 1049/2001 seeks to obtain access to documents including personal data, the provisions of Regulation No 45/2001 become applicable in their entirety. Article 8 of Regulation No 45/2001 requires the recipient of a transfer of personal data, inter alia, to demonstrate the need for their disclosure. Similarly, Article 18 of that regulation gives the person concerned the possibility of objecting at any time, on compelling legitimate grounds relating to his or her particular situation, to the processing of data relating to him or her.

(see paras 98, 99, 101, 103, 104)

5.      Concerning both the strict interpretation of the exceptions listed in Article 4 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, and the purpose of Regulation No 45/2001, on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, the disclosure of personal data exclusively concerning the applicant for access in question cannot be refused on the ground that it would undermine the protection of privacy and the integrity of the individual.

Moreover, as regards the scope of such disclosure, whilst protection of the interest referred to in Article 4(1)(b) of Regulation No 1049/2001 is not necessary in relation to the applicant for access, it must, however, be guaranteed, in accordance with the provisions of Regulation No 45/2001, in relation to third parties. Consequently, contrary to the principle according to which the purpose of Regulation No 1049/2001 is to open a right of access of the public in general to the documents of the institutions, where the documents in question contain personal data concerning the applicant for access, the right of the latter to obtain their disclosure on the basis of the right of access to documents of the institutions cannot have the consequence of opening a right of access of the public in general to the said documents.

(see paras 107, 109)

6.      In the area of public access to the documents of EU institutions, it is not for the applicant to assess whether or not a person is capable of benefiting from the protection of his privacy and integrity. The protection which must be accorded to personal data in the context of the application of the provisions of Article 4(1)(b) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, must be assured in strict compliance with the provisions of Regulation No 45/2001, on the protection of individuals with regard to the processing of personal data by the Community. That latter regulation does not lay down an exception to the protection of the fundamental right which it guarantees, on the ground that the data in question concern a person who is not worthy of such protection. Moreover, unlike the exception referred to in the second subparagraph of Article 4(3) of Regulation No 1049/2001, that falling within the provisions of Article 4(1)(b) of Regulation No 1049/2001 and Regulation No 45/2001 is not capable of being dismissed on the basis of the existence of a higher public interest.

(see paras 112, 124)

7.      Pursuant to the second subparagraph of Article 4(3) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure. Having regard to the principle that exceptions to the right of access to institution documents must be interpreted strictly, it is only for part of the documents for internal use, namely those containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, that the second subparagraph of Article 4(3) of Regulation No 1049/2001 allows access to be refused even after the decision has been taken, where their disclosure would seriously undermine the decision-making process of that institution.

The purpose of that provision of Regulation No 1049/2001 is thus to protect certain types of documents drawn up in the context of a proceeding, the disclosure of which, even after that proceeding has terminated, would seriously undermine the decision-making process of the institution concerned. Those documents must contain opinions for internal use as part of deliberations and preliminary consultations within the institution concerned.

(see paras 130-132)

8.      The statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the EU judicature to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

(see para. 181)

9.      As regards an application for access to documents, where the institution in question refuses such access, it must demonstrate in each individual case, on the basis of information which it has at its disposal, that the documents to which access is sought do indeed fall within the exceptions listed in Article 4 of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents. It is therefore for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the document requested does in fact fall within the sphere covered by the exception relied on and, second, whether the need for protection relating to that exception is genuine.

In that regard, an implied refusal of access by definition implies an absolute lack of reasoning which does not satisfy the duty to state reasons which Article 296 TFEU imposes on EU institutions.

(see paras 182, 185-187, 198)