Case T-233/09

Access Info Europe

v

Council of the European Union

(Access to documents – Regulation (EC) No 1049/2001 – Document concerning an ongoing legislative procedure – Partial refusal of access – Action for annulment – Period allowed for bringing proceedings – Admissibility – Disclosure by a third party – Interest in bringing proceedings not lost – Identification of the Member State delegations which made proposals – Exception relating to protection of the decision-making process)

Summary of the Judgment

1.      Actions for annulment – Time-limits – Point from which time starts to run

(Arts 230, fifth para., EC and 254(3) EC)

2.      Actions for annulment – Interest in bringing proceedings – Action brought against a Council decision granting only partial access to a document – Disclosure of that document in its entirety by a third party – Interest in bringing proceedings not lost – Admissibility

(Art. 266, first para., TFEU; European Parliament and Council Regulation No 1049/2001)

3.      European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process

(European Parliament and Council Regulation No 1049/2001, Arts 1 and 4)

1.      It follows from the very wording of the fifth paragraph of Article 230 EC that the criterion of the day on which the contested decision came to the knowledge of the applicant, as the start of the period for instituting proceedings, is subsidiary to the criteria of publication or notification.

Consequently, the date on which the applicant took cognisance of the contested decision cannot be regarded as the point at which time starts to run for the purposes of bringing proceedings, where that decision was notified to the applicant pursuant to Article 254(3) EC.

Thus, where the addressee has been notified, it is the date of notification which is to be taken into consideration for the purposes of calculating the time allowed under the fifth paragraph of Article 230 EC for bringing proceedings, not the date on which cognisance was taken, which comes into play only as an alternative in cases where there is no notification.

(see para. 28)

2.      The applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That objective of the dispute must, like the interest in bringing proceedings, persist until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it. If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the General Court on the merits cannot bring him any benefit.

Disclosure of the full version of the document to which the applicant requests access on the internet site of a third party does not support the conclusion that the applicant does not have, or no longer has, an interest in applying to have the decision refusing him full access to that document annulled.

An applicant retains an interest in seeking the annulment of an act of an institution in order to prevent its alleged unlawfulness from recurring in the future. That interest in bringing proceedings follows from the first paragraph of Article 266 TFEU, under which the institution whose act has been declared void is required to take the necessary measures to comply with the judgment of the Court. However, that interest in bringing proceedings can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances which have given rise to the action brought by the applicant. That is the situation in an action for annulment brought against a Council decision refusing access to a document since, first, the allegation of unlawfulness by the applicant is based on an interpretation of one of the exceptions provided for in Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents that the Council is very likely to rely on again at the time of a new request and, secondly, the applicant as an association seeking to promote openness within the European Union, is likely to submit, in future, similar requests for access to the same type of document.

Furthermore, since the body responsible for disclosing the information in question was not the Council, which would thereby acknowledge the public interest in having such information disclosed, but a third party which did not comply with the rules applicable to public access to Council documents, the behaviour of the third party is not relevant for the purpose of assessing the applicant’s interest in having such a decision annulled.

It follows from the foregoing that, even though it has been able to obtain the content of the information to which access was refused by the Council, the applicant has an interest in having the contested decision annulled.

(see paras 33-37)

3.      In view of the objectives pursued by Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents and especially the fact, noted in recital 2 in the preamble thereto, that the public right of access to the documents of the institutions is connected with the democratic nature of those institutions and the fact that, as stated in recital 4 and in Article 1, the purpose of the regulation is to give the public the widest possible right of access, the exceptions to that right set out in Article 4 of the regulation must be interpreted and applied strictly.

Giving the public the widest possible right of access entails, therefore, that the public must have a right to full disclosure of the requested documents, the only means of limiting that right being the strict application of the exceptions provided for in Regulation No 1049/2001. If only one part of a requested document is covered by an exception, the other parts of the document are to be disclosed. In those circumstances, openness makes it possible for citizens to participate more closely in the decision-making process and for the administration to enjoy greater legitimacy and to be more effective and more accountable to the citizen in a democratic system.

Those considerations are clearly of particular relevance where the Council is acting in its legislative capacity, a fact reflected in recital 6 to Regulation No 1049/2001, which states that wider access must be granted to documents in precisely such cases. Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.

The mere fact that a document concerns an interest protected by an exception is not sufficient to justify application of that exception. Such application may, as a rule, be justified only if the institution has previously assessed whether access to the document could specifically and effectively undermine the protected interest. In addition, the risk of a protected interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical.

(see paras 55-57, 59)