ORDER OF THE GENERAL COURT (Fourth Chamber)
22 April 2024 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to correspondence between the Commission and Biogen and any document prepared by the Commission or Biogen relating to the interpretation and the consequences to be drawn from a judgment of the Court of Justice – Implied refusal of access – Express decision adopted after the action was brought – No need to adjudicate)
In Case T‑585/23,
Mylan Ireland Ltd, established in Dublin (Ireland), represented by K. Roox, T. De Meese, J. Stuyck and C. Dumont, lawyers,
applicant,
v
European Commission, represented by Ș. Ciubotaru and A. Spina, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos (Rapporteur), President, I. Reine and T. Pynnä, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
makes the following
Order
1 By its action under Article 263 TFEU, the applicant, Mylan Ireland Ltd, seeks the annulment of the implied decision of the European Commission of 8 July 2023 (‘the implied decision of 8 July 2023’), as confirmed by its express reply of 11 August 2023 (‘the express reply of 11 August 2023’), rejecting an application for access to documents made by the applicant on 19 April 2023 (‘the initial application of 19 April 2023’) under 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).
Background to the dispute and events subsequent to the bringing of the action
2 In its initial application of 19 April 2023, the applicant sought, under Regulation No 1049/2001, access to Commission documents and information leading, or relating, to the letter of 17 March 2023 which the Commission had sent to the applicant, dealing with the alleged consequences of the judgment of 16 March 2023, Commission and Others v Pharmaceutical Works Polpharma (C‑438/21 P to C‑440/21 P, EU:C:2023:213). That application concerned, first, the details of all contacts, communications and correspondence (in any form), including copies thereof, between Biogen Netherlands BV and the Commission with regard to the interpretation and consequences of that judgment and, secondly, any document prepared by Biogen or by the Commission in relation to the interpretation and consequences of that judgment, including further decision-making or strategic documents from the Commission (or from Biogen).
3 On 3 May 2023, the Commission’s Directorate-General for Health and Food Safety (‘DG SANTE’) informed the applicant that the initial time limit for the reply would be extended by 15 working days, in accordance with Article 7(3) of Regulation No 1049/2001, in so far as the initial application of 19 April 2023 required detailed research into old documents which were not all digitalised. According to the Commission, the new time limit was therefore to expire on 7 June 2023.
4 On 8 June 2023, acknowledging that the time limit had expired, DG SANTE informed the applicant that the initial application of 19 April 2023 was being handled and that a reply would be sent as soon as it was signed at the appropriate level.
5 On 16 June 2023, the applicant submitted a confirmatory application to the Commission (‘the confirmatory application of 16 June 2023’), asserting that the Commission had not replied to the initial application of 19 April 2023.
6 In its express reply of 11 August 2023, sent to the applicant in reply to the initial application of 19 April 2023, DG SANTE identified five documents as falling within the scope of the applicant’s application, but refused to grant access to the documents in question on the basis of the exceptions provided for in the second indent of Article 4(2) and in the first subparagraph of Article 4(3) of Regulation No 1049/2001. The Commission also informed the applicant of the possibility of submitting a confirmatory application under Article 7(2) of Regulation No 1049/2001 within 15 working days of receiving that reply.
7 On 15 September 2023, the applicant filed the present action for annulment.
8 On 7 December 2023, the Commission notified to the applicant, in response to the confirmatory application of 16 June 2023, an express confirmatory decision (‘the express decision of 7 December 2023’). In that decision, the Commission reviewed the express reply of 11 August 2023 and granted partial access to the five documents identified, excluding information concerning personal data, in the light of Article 4(1)(b) of Regulation No 1049/2001, which were redacted in accordance with Article 4(6) of that regulation.
Forms of order sought
9 The applicant claims that the Court should:
– annul the implied decision of 8 July 2023, taken 15 working days after the confirmatory application of 16 June 2023, as confirmed by the express reply of 11 August 2023;
– order the Commission to grant access immediately to the requested documents;
– order the Commission to pay the costs of the proceedings.
10 The Commission contends that the Court should:
– declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it;
– order each party to bear its own costs.
11 In its observations on the application for a declaration that there is no need to adjudicate, the applicant argues that other documents could be affected by the initial application of 19 April 2023. However, it submits no different form of order in that regard. The applicant claims that the Court should dismiss the Commission’s application for a declaration that there is no need to adjudicate.
Law
12 Under Article 130(2) and (7) of the Rules of Procedure of the General Court, on application by a party, the Court may declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.
13 In the present case, since the Commission has applied for a declaration that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, the Court, finding that it has sufficient information available to it from the documents in the file, has decided to give a decision on that application without taking further steps in the proceedings.
14 According to settled case-law, the provision that the action must retain its purpose is a prerequisite in order for the Court to exercise its powers, and requires the existence of a concrete advantage that the applicant may procure from the final judgment (see order of 28 February 2012, Schneider España de Informática v Commission, T‑153/10, EU:T:2012:94, paragraph 20 and the case-law cited).
15 With regard to Regulation No 1049/2001, it should be pointed out that Articles 7 and 8 of that regulation, by providing for a two-stage procedure, aim to achieve, first, the swift and straightforward processing of applications for access to documents of the institutions concerned and, second, as a priority, an amicable settlement of disputes which may arise. For cases in which such a dispute cannot be resolved by the parties, paragraph 1 of the abovementioned Article 8 provides two remedies, namely the institution of court proceedings or the lodging of a complaint with the Ombudsman (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 53).
16 In the present case, it must be held, first, that the express reply of 11 August 2023 was sent to the applicant in reply to the initial application of 19 April 2023 and was confirmed by the implied decision that arose out of the Commission’s failure to reply to that initial application of 19 April 2023. Secondly, it must also be held that the Commission adopted the express decision of 7 December 2023 after the present action was brought, whereas an implied reply by the Commission, refusing access to the requested documents, came 15 working days after the confirmatory application of 16 June 2023, namely on 8 July 2023.
17 The Court recalls that, where an implied decision refusing access has been withdrawn by the effect of an express decision taken subsequently, there is no longer any need to adjudicate on the action in so far as it is directed against that implied decision (judgment of 2 July 2015, Typke v Commission, T‑214/13, EU:T:2015:448, paragraph 36; see also, to that effect, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraphs 88 and 89).
18 In the present case, the adoption of the express decision of 7 December 2023 had the effect of withdrawing the implied decision of 8 July 2023, refusing access to the requested documents, and therefore removed the subject matter of the action, which sought, in essence, the annulment of that implied decision of 8 July 2023.
19 Moreover, as regards the applicant’s second head of claim, requesting that the Court order the Commission to grant access immediately to the requested documents, it is sufficient to recall that, when exercising judicial review of legality under Article 263 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the European Union, even where they concern the manner in which its judgments are to be complied with (orders of 22 September 2016, Gaki v Commission, C‑130/16 P, not published, EU:C:2016:731, paragraph 14, and of 19 July 2016, Trajektna luka Split v Commission, T‑169/16, not published, EU:T:2016:441, paragraph 13).
20 It follows that the applicant’s second head of claim must be rejected on the ground of manifest lack of jurisdiction.
21 In the light of the foregoing, it must be held that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.
Costs
22 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.
23 In the present case, the applicant cannot be criticised, in the absence of an express reply from the Commission within the prescribed time limits to the confirmatory application of 16 June 2023, for having brought the present action. On the date on which the present action was brought, the applicant could not have been certain of the date on which the Commission would adopt an express decision.
24 In those circumstances, the Commission must be ordered to bear its own costs and to pay those incurred by the applicant.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action, in so far as it seeks the annulment of the implied decision of the European Commission of 8 July 2023 refusing an application for access to documents made by Mylan Ireland Ltd on 19 April 2023 under 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.
2. The action is dismissed as to the remainder.
3. The European Commission shall pay the costs.
Luxembourg, 22 April 2024.
V. Di Bucci | | R. da Silva Passos |