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Language of document : ECLI:EU:T:2015:209

Case T‑402/12

Carl Schlyter

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Article 4(2), third indent — Exception relating to the protection of the purpose of investigations — Regulation (EC) No 1367/2006 — Article 6(1) — Detailed opinion of the Commission concerning a draft Order relating to the annual declaration of nanoparticle substances, notified by the French authorities to the Commission in accordance with the provisions of Directive 98/34/EC — Refusal of access)

Summary — Judgment of the General Court (Fourth Chamber), 16 April 2015

1. Approximation of laws — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Directive 98/34 — Obligation on Member States to notify the Commission of all draft technical regulations — Scope — Breach of that obligation — Consequences

(European Parliament and Council Directive 98/34, as amended by Directive 98/48, Art. 8(1))

2. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and adoption — Requirement that the institution should examine the documents specifically and individually — Scope — Refusal of access — Obligation to state reasons — Scope

(Art. 296 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2))

3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the objectives of inspection, investigation and audit activities — Scope — Application to detailed opinions delivered by the Commission in the context of Directive 98/34 — Not included

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent; European Parliament and Council Directive 98/34, as amended by Directive 98/48, Arts 8 and 9)

4. Approximation of laws — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Directive 98/34 — Obligation on Member States to notify the Commission of all draft technical regulations — Distinction between the notification procedure and the infringement procedure

(Art. 258 TFEU; European Parliament and Council Directive 98/34, as amended by Directive 98/48, Arts 8 and 9)

1. See the text of the decision.

(see para. 38)

2. See the text of the decision.

(see paras 49-51, 76)

3. The detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services does not fall within the scope of an investigation for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, namely a procedure whereby the administrative body gathers information and checks certain facts before taking a decision.

In the first, place, in the context of the procedure laid down by Directive 98/34, it is not the Commission’s task to gather information before delivering a detailed opinion. In the second place, although, on the basis of the information sent by the notifying Member State, the Commission checks certain facts, it does not adopt a decision, but, if necessary, issues a non-binding, interim opinion. The delivery of a detailed opinion is merely the outcome of the analysis of the draft technical regulation carried out by the Commission, as a result of which the Commission takes the view that the draft technical regulation may create obstacles to the free movement of goods and services or the freedom of establishment of service operators within the internal market. Furthermore, that detailed opinion does not necessarily reflect a final position on the part of the Commission, because, following its delivery, the Member State concerned must report to the Commission on the action it proposes to take on such a detailed opinion and the Commission must comment on that reaction.

The detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 also does not constitute the result of research carried out by a competent authority in order to establish that an infringement has taken place. By its nature, a draft technical regulation is a preparatory text, which may alter and be amended. As long as that technical regulation is not adopted, it cannot infringe the rules governing the free movement of goods, the free movement of services or the freedom of establishment of service operators within the internal market. Consequently, the Member State to which that opinion is addressed cannot have infringed EU law because, at the time when a detailed opinion under Directive 98/34 is delivered, the national technical regulation exists only in draft form.

Moreover, even if the detailed opinion did fall within the scope of an investigation for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001, the exception laid down by that provision is designed to protect not investigations as such but the purpose of those investigations. In that regard, disclosure, during the standstill period, of a detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 does not necessarily adversely affect the purpose of that procedure. The fact that the Commission discloses its detailed opinion to the effect that aspects of the draft technical regulation may create obstacles to the free movement of goods, the free movement of services and the freedom of establishment of service operators within the internal market does not jeopardise the objective of having a national technical regulation which complies with EU law. On the contrary, such disclosure will be perceived by the Member State concerned as an additional incentive to make sure that its technical regulation is compatible with the EU rules governing such fundamental freedoms.

(see paras 55, 56, 58-61, 63, 64, 84, 87)

4. The nature of the check carried out by the Commission in the context of the procedure under Directive 98/34 is fundamentally different from that in the infringement procedure under Article 258 TFEU. The notification procedure established by Directive 98/34 is an example of an ex ante check, which is designed to ensure that draft technical regulations that the Member States are contemplating adopting comply with EU law. The Member State concerned cannot, during that procedure, have committed any infringement of EU law, since the very purpose of that procedure is to prevent any incompatibilities between draft technical regulations and EU law. The position adopted by the Commission cannot therefore be binding and have the aim of penalising conduct.

By contrast, the infringement procedure is the classic example of an ex post check, which involves monitoring national measures once they have been adopted by the Member States and is designed to restore observance of the legal order. It is true that the pre-litigation stage provided for by the infringement procedure also provides for a phase of dialogue between the Commission and the Member State concerned. However, the objective is to achieve the amicable settlement of a dispute between the Commission and the Member State concerned and, failing that, to contemplate bringing proceedings before the Court of Justice on account of the incompatibilities of a national measure which has entered into force and has legal effects on the internal market.

In that regard, the detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 does not constitute a formal notice inasmuch as there is formally no dispute between the Commission and the Member State concerned at this stage of that procedure. Since the technical regulation is merely envisaged, any incompatibility between it and EU law which is pointed out by the Commission in a detailed opinion is not established and is, in that sense, merely hypothetical. Furthermore, the view expressed by the Commission in a detailed opinion which it delivers in the context of the procedure laid down by Directive 98/34 is provisional in the sense that, under Article 9 of that directive, it is an initial statement of the Commission’s position. The provisional nature of that detailed opinion precludes the possibility of its adversely affecting a later discussion in the context of an infringement procedure. The infringement procedure presupposes in the first place that the Commission establishes its position in a formal notice. As long as the Commission’s position has not been established, it cannot adversely affect a negotiation.

(see paras 78-81)