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Action brought on 8 March 2010 - ClientEarth e.a. v Commission

(Case T-120/10)

Language of the case: English

Parties

Applicants: ClientEarth (London, United Kingdom), Transport & Environment (Brussels, Belgium) European Environmental Bureau (Brussels, Belgium) and BirdLife International (Brussels, Belgium), (represented by: S. Hockman QC, Barrister)

Defendant: European Commission

Form of order sought

declare the defendant in violation of Regulation (EC) No 1049/2001¹ and Regulation (EC) No 1367/2006²;

declare that the reasons for refusal of a document under Article 4(3) of Regulation (EC) No 1049/2001 must be stated in a written reply during the prescribed time-limits of the two-stage administrative procedure, or be waived as claims to an exception of defences at law, and otherwise fall outside the scope of judicial review;

annul the contested decision of 9 February 2010 (SG.E3/MM/psi-Ares (2010)70321), by which the Commission declared its intention to withhold from the applicants certain documents containing environmental information;

order the defendant to provide access to all requested documents identified in the course of its review of the 15 October 2009 application, the confirmatory application of 17 December 2009, and all documents generated during the consideration thereof, without delay or redaction according to Article 10 of Regulation (EC) No 1049/2001; and

order the defendant to pay applicant's costs, including the costs of any intervening party.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of the Commission's decision of 9 February 2010, by which the defendant declared its intention to withhold from the applicants certain documents containing environmental information relating to greenhouse gas emissions resulting of production of biofuels, produced and/or used by the Commission in accordance with Directive 2009/28/EC³.

In support of his appeal, the appellant submits the following pleas in law:

Firstly, violation of Article 8 of Regulation (EC) No 1049/2001 for failure to provide timely disclosure of documents or reasons for withholding. The application was submitted on 15 October 2009. The defendant issued a partial refusal, releasing four documents and withholding approximately two hundred documents. Applicants challenged the basis of the refusal. On 9 February 2010, the date of expiration of the time-limit prescribed in the regulation, the Commission refused to disclose the remaining documents or to provide valid reasons for withholding them.

Secondly, violation of Articles 7(1) and 8(1) of Regulation (EC) No 1049/2001 for failure to provide detailed reasons for withholding each document. In order to qualify for an exception, detailed reasons for withholding each document must be provided in a written reply within the prescribed time-limit. On 9 February 2010, the date of expiration of the time-limit prescribed in the regulation, the Commission refused to release the remaining documents and offered no detailed reasons for withholding them as required under the regulation and case-law.

In addition, the applicants claim violation of Article 4 of Regulation (EC) No 1049/2001 for failure to carry out a concrete, individual assessment of the content of each document. The Commission is required to perform a concrete, individual assessment of the content of each document in determining whether the document or any portion thereof falls under an exception to the general rule that all documents should be made accessible. On 9 February 2010, the date of expiration of the time-limit prescribed in the regulation, the Commission admitted that this analysis had not been performed on the request documents and, to the extent any analysis was performed, it was not made available to applicants.

Furthermore, the applicants claim infringement of Article 4(3) of Regulation (EC) No 1049/2001 and Article 6(1) of Regulation (EC) No 1367/2006 for unlawful application of the Article 4(3) exception. The Commission originally claimed the Article 4(3) exception for approximately two hundred documents. On 9 February 2010, the date of expiration of the time-limit prescribed in the regulation, the Commission did not release the documents. In order to claim the Article 4(3) exception, the Commission must show that the document or information contained therein would seriously undermine its decision-making process. Applicants allege that the documents, containing environmental information relating to emissions in the environment, would not seriously undermine the Commission's decision-making process and, to the extent that any document or information qualified for an exception, there is an overriding public interest in disclosure.

At the same time, the applicants claim violation of Article 4(6) of Regulation (EC) No 1049/2001 for failure to redact documents. In the instance the Commission refuses to release requested documents, it must consider redaction, if possible, of those sections that otherwise qualify for a claim to exception and release those portions that fall outside the exception. Applicants allege that the Commission failed to consider and perform redaction and, as a result, withheld information or portions of documents that should have otherwise been released.

Finally, it is submitted that the defendant infringed Article 4(7) of Regulation (EC) No 1049/2001 for failure to identify the period of application of the Article 4(3) exception. In the instance the Commission refuses to release requested documents or portions thereof, it must identify the period that the exception applies. Applicants allege that the Commission failed to consider and disclose the period that any otherwise valid claim to exception applies.

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¹ - 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)

² - Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, p. 13)

³ - Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (Text with EEA relevance) (OJ L 140, p. 16)