Case T‑214/13

Rainer Typke

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to competition EPSO/AD/230-231/12 — Implied refusal to grant access — Refusal to grant access — Request for modification of the form of order sought submitted in the reply — Time-limit — Withdrawal of the implied decision — No need to adjudicate — Concept of a document — Extraction and organisation of information contained in electronic databases)

Summary — Judgment of the General Court (Third Chamber), 2 July 2015

1.      Judicial proceedings — Decision or regulation replacing the contested measure in the course of proceedings — New factor — Application for extension of the initial pleadings — Time-limit for the submission of such an application — Point from which time starts to run — Date of communication of the new measure to the parties concerned

(Art. 263, sixth para., TFEU; Rules of Procedure of the General Court, Art. 102)

2.      Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Action brought against an implied decision on the part of the Commission to refuse access to documents — Decision replaced during the proceedings with an express decision — Applicant having brought a new action against that latter decision — Disappearance of the interest in bringing an action

(Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001, Arts 7 and 8)

3.      EU institutions –Right of public access to documents — Regulation No 1049/2001 — Requirement that the institution should examine the documents specifically and individually –Examination proving particularly heavy and inappropriate — Derogation from the obligation to examine — Limited scope — Obligation of the institution to liaise with the applicant

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

4.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Distinction between document and information — No obligation on an institution to reply to any application for information by an individual

(European Parliament and Council Regulation No 1049/2001, Arts 2(1), and 3(a))

5.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Scope — Application for access seeking a search in databases — Inclusion — Limits — Communication of data from those bases in accordance with a scheme not supported by those databases — Not included

(European Parliament and Council Regulation No 1049/2001, Arts 2(3), 3(a), and 4)

6.      EU institutions — Right of public access to documents — Regulation No 1049/2001 — Refusal of access to a document on the ground that it does not exist or is not held by the institution concerned — Presumption of non-existence based on the statement to that effect by the institution concerned — Application in the case of an application for access to databases

(European Parliament and Council Regulation No 1049/2001)

1.      See the text of the decision.

(see paras 27-29)

2.      See the text of the decision.

(see paras 33-37)

3.      In the context of an application for access made under Regulation No 1049/2001, classification as a document is not linked to the considerable burden of work that such an application might entail for the administration concerned. Thus, even where such an application is likely to paralyse the proper working of the administration, that does not make that application inadmissible. In such exceptional circumstances, the institution’s right to seek a ‘fair solution’ together with the applicant, pursuant to Article 6(3) of Regulation No 1049/2001, reflects the possibility of account being taken, albeit in a particularly limited way, of the need to reconcile the interests of the applicant with those of good administration.

(see para. 51)

4.      It is necessary to maintain a distinction between the concept of a document and that of information, for the purposes of applying Regulation No 1049/2001.

Information may be distinguished from a document, in particular, in so far as it is defined as a data element that may appear in one or more documents. In that respect, since none of the provisions of Regulation No 1049/2001 deals with the right of access to information as such, it cannot be inferred that the public’s right of access to a Commission document, which arises under Article 2(1) of that regulation, implies a duty on the part of the Commission to reply to any request for information from an individual.

(see paras 53, 54)

5.      In general terms, the right of access to documents held by the institutions within the meaning of Article 2(3) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, applies only to existing documents in the possession of the institution concerned. An application for access that would require the Commission to create a new document, even if that document were based on information already appearing in existing documents held by it, is not, therefore, an application for partial access and does not come within the parameters of Regulation No 1049/2001.

In the event of an application for access designed to have the Commission carry out a search of one or more of its databases using search criteria specified by the applicant, the Commission is obliged, subject to the possible application of Article 4 of Regulation No 1049/2001, to accede to that request, if the requisite search can be carried out using the search tools which it has available for the database in question.

It may be presumed that, because of the complex relationships within a database which link each data item to a number of other data items, it is possible for the entirety of the data contained in the database to be presented in a variety of different ways. Likewise, it is possible to select some of the data included in such a presentation and to blank out the rest.

However, it is not permissible to compel an institution, in the context of an application for access to documents made under Regulation No 1049/2001, to communicate to the applicant part or all of the data contained in one of its databases — or in several of them — organised according to a classification scheme not supported by that database. Such an application would require the creation of a new document and would therefore not come within the parameters of Regulation No 1049/2001. What is sought by an application of that kind is not partial access to a document containing data processed according to a classification scheme that already exists and that can therefore be operated using the tools currently at the institution’s disposal for the database(s) concerned, but the creation of a document containing data that has been processed and interlinked in accordance with a new classification scheme that cannot be operated using those tools, and thus of a new document, within the meaning of Article 3(a) of that regulation. It follows that, as regards databases, anything that can be extracted from them by means of a normal or routine search may be the subject of an application for access made pursuant to Regulation No 1049/2001.

(see paras 55-59)

6.      A simple presumption of legality attaches to any statement of the institutions relating to the non-existence of documents requested in the context of Regulation No 1049/2001. That presumption applies equally where an institution declares that the combination of data requested in the application for access received is not supported by the database(s) in which those data are stored and that, therefore, that combination cannot be obtained by means of a normal or routine search.

(see para. 66)