Case T‑93/11
Stichting Corporate Europe Observatory
v
European Commission
(Access to documents — Regulation (EC) No 1049/2001 — Documents concerning the negotiations between the European Union and the Republic of India for the purposes of concluding a free trade agreement — Refusal of access — Exception relating to the protection of the public interest in the field of international relations — Documents which have entered the public domain — Non-imposition of a restriction on disclosure of documents)
Summary — Judgment of the General Court (Eighth Chamber), 7 June 2013
1. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Documents which have entered the public domain — Concept
(European Parliament and Council Regulation No 1049/2001, Arts 4, 9, 10 and 12(1) and (2); Council Decisions 98/552, Art. 3, and 1999/468)
2. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Sensitive documents —Definition
(European Parliament and Council Regulation No 1049/2001, Arts 4(1)(a), and 9(1))
3. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Institution not replying to a request for access — Effects — No implicit waiver of any restrictions on the dissemination of the documents covered by the request for access
(European Parliament and Council Regulation No 1049/2001, Art. 8(3))
4. Institutions of the European Union — Right of public access to documents — Institutions’ power of internal organisation — Vade-mecum of the Commission on access to documents — Mere staff instruction without external effects
5. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Mandatory exceptions —Special interest of the applicant taken into account — Not included
(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(a))
1. Within the framework of a consultation process made mandatory by Article 3 of Decision 98/552 on the implementation by the Commission of activities relating to the Community market access strategy, the establishment of working groups to examine specific issues, the admission of third parties as experts and the taking of minutes or drafting of reports of the meetings of the advisory committee and the working groups on market access indicate that it is necessary for the Commission to prepare and send documents to the members of that committee as well as to the trade associations and companies that were acting as experts, thereby permitting the inference that the documents were internal documents within the terms of Article 4(3) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents.
Where the recipients of the documents requested by the applicant are Member States, trade associations and companies participating, as experts in the case of the latter two categories, in the work of the advisory committee and its working groups on access to the markets of a third State, and within the framework of meetings that were not open to the public, participation in this process of assistance to the Commission constitutes a predetermined differentiating criterion, the satisfaction of which determines a person’s status as a recipient of the documents at issue. Documents sent are sent not by way of general information, but within the framework of a limited technical exchange and with the sole purpose of enabling all of the participants to fulfil their roles as advisers to the Commission. The Commission’s dissemination of such documents cannot be regarded as having been intended to, and liable to, make those documents known to the public, that is to say, to an indeterminate group of persons, considered in general and in the abstract. Nor can the group of putative recipients of the documents requested, namely the members of the trade associations participating in the work of the advisory committee and of the working groups on market access, be treated as synonymous with the ‘public’. Those members also represent a specific group of persons defined according to a predetermined criterion, in this case membership of a trade association whose expertise is required in connection with the provision of assistance to the Commission for the purpose of deciding upon a strategy for access to the markets of a third State.
Moreover, the wording on making documents ‘directly’ accessible or concerning their ‘easily accessible’ nature, used by Articles 10 and 12(1) of Regulation No 1049/2001 which is characteristic of situations in which the right of access by the ‘public’ is undertaken actively by the institutions, does not cover a selective approach adopted by the Commission in relation to the communication of the documents.
(see paras 31-33, 35-37, 39, 40, 42-44)
2. Although classification as a ‘sensitive document’ makes that document subject to special treatment, it cannot, on its own, justify the application of the grounds for refusal provided for in Article 4(1) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. Where such a document is the subject of a request for access, the harm caused by its disclosure is assessed just as it is for any other document, that is, as a rule, starting from a specific examination of its content. By the same token, the fact that none of the designations referred to in Article 9(1) of Regulation No 1049/2001 appears on the documents requested, as in the present case, is not sufficient to preclude application of the exceptions provided for in Article 4 of that regulation, as otherwise that provision would be rendered redundant and the interests protected by it adversely affected.
(see paras 52, 53)
3. As a general rule, no legal consequences may arise from an institution’s lack of action except where those consequences are expressly provided for by EU law. In the context of access to documents, the silence of an institution is taken into account solely under Article 8(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, concerning the processing of confirmatory applications. Although an implicit waiver of any restrictions on the dissemination of the documents covered by the request for access cannot, therefore, be inferred from the mere fact that the Commission did not mark the documents concerned as being confidential, the situation would be different if there were an express indication to that effect from that institution. Authorisation to communicate of that nature cannot be considered to be an express waiver of all restrictions on the dissemination of the letter or of the information contained within it; only a waiver of that kind could permit the inference that the document had genuinely entered the public domain and was, therefore, from that time on accessible to any individual or undertaking having an interest.
(see paras 57, 58, 60, 63)
4. See the text of the decision.
(see paras 72, 73, 75-77)
5. See the text of the decision.
(see para. 85)