ORDER OF THE GENERAL COURT (Fourth Chamber)
7 May 2014 (*)
(Access to documents — Regulation (EC) No 1049/2001 — Requests for quotations — Refusal of access — Replacement of the contested measure in the course of proceedings — Failure to adapt the claim for annulment — No need to adjudicate)
In Case T‑511/10,
Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and M. Dermitzakis, lawyers,
applicant,
v
European Commission, represented by P. Costa de Oliveira, E. Manhaeve and C. ten Dam, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision Ares(2010)508190 of 12 August 2010 refusing access to requests for quotations concerning certain framework contracts managed by the Publications Office of the European Union,
THE GENERAL COURT (Fourth Chamber),
composed of M. Prek, President, I. Labucka and V. Kreuschitz (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By decision of 1 August 2008, in response to a confirmatory application made by the applicant, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, pursuant to Article 7(2) of 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 L 145, p. 43), the European Commission refused access to several requests for quotations, such as those concerning Framework Contract No 6031, lot No 4, managed by the Publications Office of the European Union (‘the PO’).
2 By letter of 9 November 2009, the applicant requested access to, inter alia, ‘all the [requests for quotations] pertaining to all lots of the following contracts: ESP, ESP-DIMA, ESP-DESIS, [PO’s] framework contracts No 6011, 6102, 6103, 6020, 10042, 6121, 6031 and 10030’. That request was assigned to the PO under reference Gestdem 2009/4890.
3 By letter of 11 December 2009, the PO refused to grant access to the requests for quotations concerning framework contracts Nos 6011, 6020, 6031, 6102, 6103, 6121 and 10042, including lot No 4 of framework contract No 6031, to which access had already been refused by a Commission decision of 1 August 2008. As regards the documents relating to framework contract No 10030, the PO indicated that, because that contract had been concluded with the applicant only, those documents were already in its possession.
4 By letter of 31 December 2009, the applicant sent the Secretary General of the Commission a confirmatory application for access to all the requests for quotations pertaining to all lots of the framework contracts managed by the PO bearing Nos 6011, 6020, 6031, 6102, 6103, 6121 and 10042.
5 By decision of 12 August 2010, under the reference Ares(2010)508190, the Commission refused the applicant’s request for access to all the requests for quotations pertaining to all lots of the PO framework contracts Nos 6011, 6102, 6103, 6020, 10042, 6121, 6031 and 10030 (‘the contested decision’). In support of that decision, following a ‘representative’ analysis of a sample of 20 requests for quotations drawn from approximately 500 files, the Commission invoked the exceptions under Article 4(1)(a), fourth indent — relating to the protection of ‘the … economic policy of the Community’ — and Article 4(2), first indent — relating to the ‘protection of commercial interests’ of contractors and of the Commission — of Regulation No 1049/2001.
Procedure and forms of order sought
6 By application lodged at the Court Registry on 22 October 2010, the applicant brought the present action.
7 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
8 In the reply, the applicant limited the scope of its action to the ‘requests for quotations pertaining to all lots of the PO’s Framework Contracts No 6011, 6102, 6103, 6020, 6121, 6031’ and noted that the action also concerned lot No 4 of framework contract No 6031.
9 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
10 Following the judgment of 6 December 2012 in Case T‑167/10 Evropaïki Dynamiki v Commission, not published in the ECR, annulling two analogous Commission decisions refusing the applicant’s request for access to similar requests for quotations, the applicant and the Commission entered into discussions on the inferences to be drawn from that judgment as regards the present proceedings, particularly with a view to the possible grant of access to the requests for quotations sought by the applicant.
11 On 8 November 2013, the Commission adopted a new decision, under the reference Ares(2013)3442982, granting partial access to the requests for quotations sought by the applicant (‘the new decision’). In the statement of reasons, the Commission indicated that the new decision was intended to replace the contested decision and that it formally withdrew the latter.
12 In view of the foregoing, the Commission requested, by letter lodged at the Court Registry on 11 November 2013, that the Court should declare that there was no longer any need to adjudicate on the action, since it had become devoid of purpose and the applicant no longer had any interest in the annulment of the contested decision, which had been withdrawn.
13 By letter of 12 November 2013, the PO sent the applicant a DVD containing the documents to which it had been granted partial access by the new decision, a general inventory of documents classified per framework contract and per lot and specific inventories per framework contract.
14 By letter lodged at the Court Registry on 7 January 2014, the applicant contested the Commission’s application for a declaration that there is no need to adjudicate and maintained its application for annulment of the contested decision on the ground, inter alia, that the new decision granted it only partial access to the requests for quotations which it sought and that the Commission, in the new decision, had altered the reasons relied on in support of its refusal to grant full access to those requests, which infringed the applicant’s right to effective judicial protection. In that letter, the applicant neither requested that its claims be adapted to cover the new decision, nor indicated that it intended to bring a separate action against that decision.
15 By letter of 27 January 2014, the Court asked the applicant, by way of a measure of organisation of procedure under Article 64 of the Court’s Rules of Procedure, to indicate whether it intended to bring an action under Article 263 TFEU against the new decision and, in essence, to specify to what extent that decision and the disclosure, by the PO’s letter of 12 November 2013, of the documents concerned had satisfied its initial request for access that gave rise to the contested decision and the present proceedings.
16 By letter of 4 February 2014, in response to that measure of organisation of procedure, the applicant stated, in essence, that it regarded the new decision as being based on Regulation No 1049/2001, which provides for a procedure allowing the person requesting access to make a confirmatory application to the institution to confirm its refusal. It is against that latter refusal that an action could be brought. Moreover, the applicant referred to a ‘confirmatory application’ which it sent to the Commission on the same day. According to the applicant, only if the Commission were to maintain its position would it examine the ‘legal options’ open to it at that stage. Furthermore, the applicant essentially reaffirmed that the documents disclosed following the adoption of the new decision satisfied only in part its initial request for access.
Law
17 Under Article 113 of the Rules of Procedure, the Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it.
18 In the present case, the Court considers that it has sufficient information from the documents before it and decides to give its decision without taking further steps in the proceedings.
19 Since the applicant has contested the Commission’s application for a declaration that there is no need to adjudicate in its entirety, it must be examined whether and to what extent the action has become devoid of purpose and the applicant retains an interest in the annulment of the contested decision.
20 It must be pointed out, first of all, that, in accordance with settled case-law, in so far as the applicant obtained, on the basis of the new decision, partial access to the requested documents, the action has become devoid of purpose and the applicant has lost its interest in bringing proceedings, with the result that there is no longer any need to adjudicate (Case T‑84/03 Turco v Council [2004] ECR II‑4061, paragraphs 28 to 30; Case T‑29/08 LPN v Commission [2011] ECR II‑6021, paragraph 57, and the order of 6 September 2012 in Case T‑180/10 Nickel Institute v Commission, not published in the ECR, paragraph 20).
21 Next, it must be examined whether it is also the case that the action has become devoid of purpose and the applicant has lost its interest in bringing proceedings as regards the requested documents or parts thereof to which it has not been given access following the adoption of the new decision.
22 In that respect, it must be noted, at the outset, that the applicant’s argument that, in essence, the new decision is merely provisional and that it requires a final confirmation by the Commission, against which an action may be brought, cannot be upheld.
23 First, the new decision was adopted by the Secretary General of the Commission on the basis of Article 4 of the Annex to Commission Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure (OJ L 345, p. 94), concerning the ‘treatment of confirmatory applications’. Moreover, the subject of the new decision is indicated as being the ‘[c]onfirmatory application for access to documents under Regulation … No 1049/2001 (Gestdem 2009/4890)’ and the ‘confirmatory decision of 12 August 2010, contested in Case T‑511/10’, namely the contested decision. Moreover, at the end of the new decision, the Commission draws attention to the possibility of either bringing proceedings before the Court under Article 263 TFEU or filing a complaint with the European Ombudsman under Article 228 TFEU. Thus, it is clear from the new decision that, like the contested decision which it withdrew and replaced, it is a definitive decision under Article 8(1) of Regulation No 1049/2001. Moreover, it is only on 4 February 2014 that the applicant sent the alleged ‘confirmatory application’ to the Commission (see paragraph 16 above). However, given the period of 15 working days following receipt of the institution’s reply prescribed in Article 7(2) of Regulation No 1049/2001, such a request was manifestly out of time and it is not even clear from the applicant’s letter of 4 February 2014 that it was intended to be based on that provision.
24 It follows that since the period for instituting proceedings laid down in the sixth paragraph of Article 263 TFEU has expired, the applicant is time-barred from contesting the new decision before the Court (Case T‑291/04 Enviro Tech Europe and Enviro Tech International v Commission [2011] ECR II‑8281, paragraphs 94 to 97).
25 As regards the contested decision, which, it is not disputed, was withdrawn and replaced by the new decision, it must be noted that disappearance of the subject-matter of the proceedings can inter alia result from the withdrawal or replacement of the contested act in the course of the proceedings, with the result that it disappears from the legal order of the Union, at least prospectively (see, to that effect, Case T‑411/09 Terezakis v Commission [2011] ECR II‑1, paragraphs 14 to 16). It is also undisputed that the applicant seeks only the annulment of the contested decision and not that of the new decision. Despite the Commission’s adoption, in the course of proceedings, of the new decision, the applicant declined to adapt its claims in order to cover the new decision, even though it was entitled to do so (see the order in Terezakis v Commission, paragraph 18 and the case-law cited), and even expressly indicated, in response to a written question put to it by the Court, that it did not wish to bring a separate action against that decision.
26 It must therefore be held that the present action has also become devoid of purpose as regards the documents or parts thereof which have not yet been disclosed to the applicant.
27 In that respect, the applicant cannot argue that, exceptionally, that action has not become devoid of purpose, despite the withdrawal of the act whose annulment is sought, on the ground that the applicant nevertheless retains a sufficient interest in obtaining a judgment annulling it ex tunc (see, to that effect, the order in Terezakis v Commission, cited in paragraph 25 above, paragraph 17). In particular, in the absence of an action against the new decision, which, like the contested decision, bases the (partial) refusal of access to the requested documents on the exception relating to the ‘protection of commercial interests’ within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001, the applicant cannot rely on a potential interest in preventing the alleged unlawfulness recurring in the future, independently of the circumstances of the case (see Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraphs 50 to 53, and the case-law cited). It was for the applicant to take any steps necessary to prevent the continuation of that unlawfulness, including bringing an action against the new decision before the Court within the prescribed period. In addition, in view of the definitive nature of the new decision, even if the Court were to annul the contested decision, the Commission would not be required, under the first indent of Article 266 TFEU, to grant the applicant access to the requests for quotations or certain parts thereof to which access was refused or to reopen the administrative procedure in that regard. Consequently, such an annulment would be of no advantage to the applicant, nor would it enable the applicant to bring a possible action for damages, since those objectives could have been achieved by an action against the new decision (see, to that effect, orders of 9 November 2011 in Case T‑120/10 and Case T‑449/10 ClientEarth and Others v Commission, not published in the ECR, paragraph 53 and paragraph 40 respectively).
28 Lastly, the applicant has not put forward any other evidence showing that it has an interest in obtaining the annulment of the contested decision.
29 It follows from all the foregoing considerations that there is no longer any need to adjudicate on the present case.
Costs
30 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court.
31 In the light of the factual circumstances of the present case and the procedure before the Court, the Court considers it appropriate to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE and the European Commission are to bear their own costs.
Luxembourg, 7 May 2014.