ORDER OF THE GENERAL COURT (Fourth Chamber)
21 September 2011 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to contract LIEN 97-2011 – Refusal of access – Fresh examination in the course of proceedings – Bringing of a separate action – Disappearance of the interest in bringing proceedings – No need to adjudicate)
In Case T‑141/05 RENV,
Internationaler Hilfsfonds eV, established in Rosbach (Germany), represented by H. Kaltenecker, lawyer,
applicant,
v
European Commission, represented by P. Costa de Oliveira and T. Scharf, acting as Agents,
defendant,
APPLICATION for annulment of the Commission’s decision of 14 February 2005 refusing Internationaler Hilfsfonds eV full access to the file relating to contract LIEN 97-2011,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,
Registrar: E. Coulon,
makes the following
Order
Factual background to the dispute
1 The applicant, Internationaler Hilfsfonds eV, is a non-governmental organisation established under German law which is active in the field of humanitarian aid. On 28 April 1998, it signed the ‘LIEN 97-2011’ contract with the Commission of the European Communities (‘the contract’), with a view to the joint funding of a medical assistance programme organised by it in Kazakhstan.
2 On 1 October 1999, the Commission terminated the contract unilaterally and, following that termination, informed the applicant on 6 August 2001 of its decision to recover a certain sum paid to that party under that contract.
3 On 9 March 2002, the applicant submitted an application to the Commission seeking access to the documents relating to the contract. That application having been accepted in part, the applicant, by letter of 11 July 2002 addressed to the President of the Commission, applied for full access to the documents relating to the contract. Since the applicant was not completely satisfied with the response to that application, it lodged a complaint, registered under reference 1874/2003/GG, with the European Ombudsman criticising the Commission’s refusal to grant it full access to the documents relating to the contract.
4 Following a draft recommendation of 15 July 2004 sent by the Ombudsman to the Commission and a reasoned opinion sent on 12 and 21 October 2004 by the Commission to the Ombudsman, the latter, on 14 December 2004, adopted a definitive decision in which he held, by way of a criticism, that the fact that the Commission did not provide valid reasons capable of justifying its refusal to grant the applicant access to several documents relating to the contract constituted an instance of maladministration.
5 On 22 December 2004, acting on the basis of the conclusions of the Ombudsman’s definitive decision of 14 December 2004, the applicant made a new application to the President of the Commission for full access to the documents relating to the contract. By letter of 14 February 2004 (‘the contested decision’), the Commission answered that application and, in this respect, decided not to make available to the applicant any documents other than those to which it had hitherto been granted access.
Procedures and forms of order sought
Procedure at first instance
6 By application lodged at the Registry of the Court of First Instance (now the General Court) on 11 April 2005, the applicant brought an action for annulment of the contested decision. That action was registered under Case number T‑141/05. Following a plea of inadmissibility raised by the Commission under Article 114(1) of the Rules of Procedure of the General Court, that court, by judgment of 5 June 2008 in Case T-141/05 Internationaler Hilfsfonds v Commission, not published in the ECR, dismissed the applicant’s action as inadmissible.
Appeal before the Court of Justice
7 Following an appeal brought by the applicant under Article 56 of the Statute of the Court of Justice, that court, by judgment of 26 January 2010 in Case C-362/08 P Internationaler Hilfsfonds v Commission [2010] ECR I-669, annulled the judgment in Case T-141/05 Internationaler Hilfsfonds v Commission, rejected the plea of inadmissibility raised by the Commission before the General Court and referred the case back to the General Court for judgment on the claims of the applicant seeking annulment of the contested decision.
Procedure in the case referred back to the General Court
8 After it was referred back to the General Court, the case was allocated, first of all, to the former Second Chamber. Subsequently, the composition of the chambers of the General Court having been altered, it was allocated to the Fourth Chamber.
9 By letter of 23 March 2010, the Registry of the General Court, in accordance with Article 119(2) of the Rules of Procedure, informed the parties that the written procedure would be resumed at the stage which it had reached when the judgment referring the case back to the General Court was delivered and, on that basis, requested the Commission to lodge a defence.
10 On 5 May 2010, the Commission lodged at the Court Registry a procedural document which, following a decision of the President of the former Second Chamber, was included in the file as a request for an order that there was no need to adjudicate containing an application for a measure of organisation of procedure.
11 On 22 June 2010, the applicant lodged observations on the request for an order that there was no need to adjudicate at the Court Registry.
12 By letter of 19 July 2010, lodged at the Court Registry on 20 July 2010, the applicant, in accordance with the provisions of Article 48 of the Rules of Procedure, introduced new pleas in law, seeking to include in its arguments for the purposes of this action arguments allegedly similar to those accepted by the General Court in the judgment of 7 July 2010 in Case T-111/07 Agrofert Holding v Commission, not published in the ECR.
13 The Commission contends that the Court should:
– dismiss the application as having become devoid of purpose;
– order the applicant to pay the costs.
14 The applicant claims that the Court should:
– reject the request for an order that there is no need to adjudicate based on the grounds that the application has become devoid of purpose;
– annul the contested decision in so far as the Commission refused it full access to the documents relating to the contract;
– order the Commission to pay the costs.
Law
Arguments of the parties
15 In the request for an order that there is no need to adjudicate, the Commission points out that, by letters of 28 and 31 August 2009, the applicant brought a new application for full access to the documents relating to the contract. It states that it replied to that application by letter of 9 October 2009, indicating that it had decided to grant the applicant greater, but not full, access to those documents. The Commission adds that, by letter of 15 October 2009, the applicant requested it to re-examine its reply of 9 October 2009. It states that, initially, by letter of 1 December 2009, it informed the applicant that it was unfortunately unable, at that date, to respond definitively to that request. The Commission nevertheless explains that, subsequently, by letter of 29 April 2010, after conducting a detailed examination of each of the contract documents to which the applicant had hitherto been denied access, it adopted a decision by which it granted the applicant still greater, but not full, access to those documents (‘the decision of 29 April 2010’). Lastly, it observes that the applicant brought an action for annulment of its decisions of 9 October and 1 December 2009, registered at the Court Registry under Case number T‑36/10.
16 Consequently, the Commission submits that, following the decision of 29 April 2010, the applicant no longer has any interest in bringing proceedings in the case which is the subject of the present application. The Commission contends that, even if the Court were to annul the contested decision, that would not in any way change the applicant’s situation in so far as it would then be required to re‑examine the applicant’s application for access to the documents relating to the contract. This was exactly what it did when it examined the new application to that effect contained in the letters of 28 and 31 August 2009, an examination which concluded in the adoption of the decision of 29 April 2010. In those circumstances, a decision by the Court on the merits in the present case would not confer any additional advantage on the applicant.
17 Nevertheless, the Commission states that it is aware of the fact that a dismissal of this action, on the ground that it has become devoid of purpose, could induce the applicant to bring an action against the decision of 29 April 2010. Therefore, in the interests of procedural economy, it proposes that the Court allow the applicant to explain what conclusions it draws from the adoption of the decision of 29 April 2010 for the purposes of the conduct of present proceedings, or even to adapt its pleas in law and claims for relief in the present action in order to take account of that decision as a new item of information.
18 In the observations on the request for an order that there is no need to adjudicate, the applicant claims, first, that it still has an interest in bringing proceedings in the present case, inter alia in order to safeguard its right to effective judicial protection. It points out in this connection that, notwithstanding bringing the present action in 2005, as a result of the plea of inadmissibility raised by the Commission and the General Court’s decision to declare, incorrectly, that action inadmissible (paragraph 6 above), it is not yet able to know all about the decision by which the Commission unilaterally and abruptly terminated the contract. It adds that, since that termination in 1999, the Commission has prevented it from consulting all the relevant contract documents and thereby understanding the reasons for that termination. That situation precludes it producing before the Belgian national court, before which the Commission has brought an action for reimbursement of a certain sum initially paid under the contract, all the documents necessary for its defence. The applicant’s interest in bringing proceedings is also preserved by the judgment in Case C-362/08 P Internationaler Hilfsfonds v Commission, pursuant to which the Court of Justice directed the General Court to rule on the merits of the dispute and not to declare that there was no further need to adjudicate.
19 Second, the applicant states that, in the light of the provisions of the Rules of Procedure and the case-law, its pleas in law and claims for relief in the present action cannot be modified since the new measure on which the Commission is relying was not adopted by a third party but by the defendant itself. Therefore, it informs the Court that it has decided to bring an action for annulment of the decision of 29 April 2010.
20 Third, the applicant requests the Court to join this case with Case T-36/10 (see paragraph 15 above), in order to examine the pleas raised in support of those two actions together. In addition, it requests the Court to stay the proceedings in those two pending cases of its own motion, in accordance with Article 77(d) of the Rules of Procedure, until there has been a ruling on the action which it has decided to bring for annulment of the decision of 29 April 2010 (see paragraph 19 above).
Findings of the Court
21 Under Article 114(1) of the Rules of Procedure, the General Court may, on the application of a party, decide on a preliminary plea not going to the substance of the case. In the present case, having regard to the Commission’s request of 5 May 2010 for an order that there is no need to adjudicate and the applicant’s observations of 22 June 2010 on that request, since the Court considers itself to have sufficient information from the documents in the file, it is appropriate to settle the preliminary issue without an oral procedure, pursuant to Article 114(3) and (4) of the Rules of Procedure.
22 First, it is settled case-law that any application must be based on an interest on the part of the applicant concerned in bringing proceedings (orders in Case 13/86 von Bonkewitz-Linder v European Parliament [1987] ECR 1417, paragraph 6, and in Case 134/87 Vlachou v Court of Auditors [1987] ECR 3633, paragraph 8). The lack of an interest in bringing proceedings is an absolute bar to proceedings which the Court can examine of its own motion (order in Case 108/86 D.M. v Council and ESC [1987] ECR 3933, paragraph 10; judgments in Case T‑45/91 Mc Avoy v Parliament [1993] ECR II-83, paragraph 22, and of 20 September 2000 in Case T‑261/97 Orthmann v Commission [2000] ECR-SC p. I-A-181 and II-829, paragraph 31).
23 In the present case, it must be stated that, in the light of the case-law mentioned in paragraph 22 above, the referral by the Court of Justice of a case back to the General Court cannot derogate from the principle that the General Court can rule on a request for an order that there is no need to adjudicate which concerns an absolute bar to proceedings such as a lack of interest in bringing proceedings. Consequently, the applicant’s argument alleging that, in the light of Case C‑362/08 P Internationaler Hilfsfonds v Commission, the Court of Justice has directed the General Court to rule on the merits of the dispute and not to declare that there was no further need to adjudicate, must be rejected.
24 Second, it is apparent from the case-law that the conditions governing the admissibility of an action must be judged, subject to the separate question of the loss of an interest in bringing proceedings, at the time when the application is lodged (see Case T-131/99 Shaw and Falla v Commission [2002] ECR II‑2023, paragraph 29 and the case-law cited). However, in the interest of the proper administration of justice, that consideration relating to the time when the admissibility of the action is assessed cannot prevent the Court from finding that there is no longer any need to adjudicate on the action in the event that an applicant who initially had an interest in bringing proceedings has lost all personal interest in having the contested decision annulled on account of an event occurring after that application was lodged. For an applicant to be entitled to pursue an action seeking the annulment of a decision, he must retain a personal interest in the annulment of the contested decision (order in Case T-28/02 First Data and Others v Commission [2005] ECR II‑4119, paragraphs 36 and 37, and judgment in Case T-301/01 Alitalia v Commission [2008] ECR II-1753 paragraph 37). If he does not have such an interest, a decision of the Court on the merits cannot bring him any benefit (Case C-362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 43, and Joined Cases T-355/04 and T‑446/04 Co-Frutta v Commission [2010] ECR II-1, paragraph 44).
25 In addition, it follows from the provisions of Article 4(7) 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 2001 L 145, p. 43), which provides that the exceptions as laid down in paragraphs 1 to 3 of that article are only to apply for the period during which protection is justified on the basis of the content of the document, that a person may make a new application for access relating to documents to which he has previously been denied access. Such an application requires the institution concerned to examine whether the earlier refusal of access remains justified in the light of a change in the legal or factual situation which has taken place in the meantime (Case C-362/08 P Internationaler Hilfsfonds v Commission, paragraphs 56 and 57). In those circumstances, that institution cannot oppose those new applications for access to the documents merely on the basis of the earlier refusals to grant access (Case C-362/0 Internationaler Hilfsfonds v Commission, paragraph 59).
26 Here, it is not disputed by the parties that, at the date the application in the present case was lodged, the contested decision adversely affected the applicant in so far as it contained a refusal to allow it access to the documents relating to the contract. The applicant therefore, at that date, had a personal interest in the annulment of the contested decision in order that the Commission should re‑examine its application for access to the documents.
27 However, it is common ground that, by letters of 28 and 31 August 2009, that is to say, after the application in the present case was lodged, the applicant submitted a new application for access to the documents relating to the contract to which it was still being refused access. In accordance with the case-law cited in paragraph 25 above, that new application required a fresh examination of the documents concerned. The Court also notes that, in response to that new application and to the applicant’s letter of 15 October 2009, the Commission, in its decisions of 9 October 2009 and 29 April 2010, granted the applicant progressively greater, but not full, access to those documents. Specifically, it must be pointed out that the decision of 29 April 2010 was, in accordance with the case‑law mentioned in paragraph 25 above, adopted following an examination of the new application, at which time the Commission held that the earlier refusal of access to some of the documents at issue was no longer justified but that, on the other hand, it remained justified in respect of the other documents.
28 Therefore, it must be held that while, in the decision of 29 April 2010, the Commission did not expressly decide to withdraw the contested decision, the decision of 29 April 2010 was adopted following a new application for access to the documents not disclosed, an application which led the Commission to update, or even to disregard the grounds which it had accepted as the basis of its earlier refusal of access to those documents, so the decision of 29 April 2010 replaced the contested decision, so far as concerns its effects with regard to the applicant (see, by analogy, judgment of 18 September 2008 in Case T-47/05 Angé Serrano and Others v Parliament, not published in the ECR, paragraph 88).
29 In those circumstances, first, even if the Court should decide to annul the contested decision, the Commission would, in the light of the provisions of Article 266 TFEU, as it itself acknowledges (see paragraph 16 above), be required to re‑examine the applicant’s application for full access to the contract documents. It must be stated that, at the end of such a re-examination, it could only adopt either an identical decision to that of 29 April 2010 or, if a change in the legal or factual situation has taken place after the adoption of that decision, a decision more favourable to the applicant.
30 It is also apparent from the applicant’s observations on the request for an order that there is no need to adjudicate that that party took the view that it could not, following the adoption by the Commission of the decision of 29 April 2010, adapt its claims for relief and the pleas raised in the present case in order to take that decision into account. On the other hand, as it informed the Court in those observations, on 9 July 2010 it lodged at the Court Registry an application on the basis of Article 263 TFEU, registered under Case number T-300/10, for annulment of the decision of 29 April 2010.
31 In the light of the considerations set out in paragraphs 29 and 30 above, it must therefore be held that, even if the Court were to decide to annul the contested decision, such an annulment would not bring the applicant any additional benefit as against that which it may derive from the possible annulment of the decision of 29 April 2010 in Case T-300/10.
32 Furthermore, contrary to what the applicant essentially claims, such a finding is not such as to adversely affect its right to effective judicial protection.
33 Under the provisions of Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), which, since the entry into force of the Treaty of Lisbon on 1 December 2009 has, under the first paragraph of Article 6(1) TFEU, the same legal value as the treaties, everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal, so they may be given a fair and public hearing within a reasonable time.
34 In the present case, first, it is apparent from the provisions of Article 48(2) of the Rules of Procedure that a new plea in law may be introduced in the course of proceedings if it is based on matters of law or of fact which come to light in the course of the procedure and, secondly, the case-law does not show that an applicant’s right to adapt its pleas in law and claims for relief in an action against a decision which was subsequently replaced by a new decision requires that the new measure or fact be attributable to a third party. The case‑law, which was moreover referred to by the Commission in its request for an order that there was no need to adjudicate, clearly shows that when, during the proceedings, one decision is replaced by another having the same subject-matter, this must be considered a new factor allowing the applicant to adapt its pleas in law and claims for relief. Thus, such an adaptation allows the applicant to retain its interest in bringing legal proceedings in the action brought prior to the new event having taken place. It would indeed be contrary to the proper administration of justice and the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the defendant institution were able, in order to counter criticisms of a decision contained in an application made to the Community judicature, to amend the contested decision or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later decision or of submitting supplementary pleadings directed against that decision (Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 8; Case 103/85 Stahlwerke Peine-Salzgitter v Commission [1988] ECR 4131, paragraphs 11 and 12 and Joined Cases T-46/98 and T-151/98 CEMR v Commission [2000] ECR II-167, paragraph 33).
35 Consequently, it must be stated that, contrary to the impression given by the applicant, that party had the right, following the adoption of the decision of 29 April 2010, either to update its pleas in law and claims for relief in the present action in order to take account of that decision which, as it was concluded in paragraph 28 above, replaced the contested decision, or to bring an action against that decision.
36 As has been observed in paragraph 30 above, the applicant brought an action against the decision of 29 April 2010, so it in fact exercised the right it had, under Article 263 TFEU, to challenge the legality of that decision before the European Union judicature. There will thus be a fair and public hearing by the European Union judicature within a reasonable time of the date on which the application in that new case was lodged on the applicant’s reasons for bringing the case, namely the unlawfulness it alleges regarding the Commission’s refusal to grant it full access to the documents relating to the contract.
37 Second, although the applicant did not set out pleas on this subject in its observations on the request for an order that there is no need to adjudicate, consideration of this action cannot be justified either by the objective of preventing the alleged unlawfulness from recurring, or by that of facilitating a potential action for damages, since it is possible to attain both those objectives through consideration of the action brought against the decision of 29 April 2010 (see, by analogy, Joined Cases T-494/08 to T-500/08 and T-509/08 Ryanair v Commission [2010] ECR II-5723, paragraph 46 and the case-law cited).
38 Having regard to the foregoing considerations and in accordance with the requirements of the proper administration of justice and procedural economy, it is therefore necessary to hold that, after the application in the present action was lodged, the applicant, following the adoption of the decision of 29 April 2010 and the introduction of an action for annulment of that decision (see paragraph 30 above), has lost all personal interest in having the contested decision annulled. The present action, in so far as it is directed against the contested decision, has therefore become devoid of purpose.
39 Consequently, without it being necessary to adopt a measure of organisation of procedure in order to ask the applicant whether it wishes to update its pleas in law and the claims for relief in the present case, or to stay the proceedings in this case and in Case T-36/10, or to examine whether it is necessary to join those two cases or, lastly, to assess whether the new plea in law raised by the applicant in its letter of 20 July 2010 is admissible (see paragraph 12 above), it must be concluded that there is no further need to adjudicate in the present case.
Costs
40 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.
41 In the present case, the applicant, as it was entitled to, decided to submit a new application for access to the documents relating to the contract, to which it had previously been denied access, so that the Commission, having regard to its obligation to examine whether the earlier refusal of access remained justified in the light of a change in the legal or factual situation which had taken place in the meantime (see the case-law cited in paragraph 25 above), adopted the decision of 29 April 2010 which, as it was concluded in paragraph 28 above, replaced the contested decision.
42 Furthermore, as has been observed in paragraph 30 above, the applicant, notwithstanding the case-law referred to in paragraph 34 above, incorrectly took the view that it could not adapt its claims for relief and the pleas raised in the present case in order to take the decision of 29 April 2010 into account, which would have allowed it to retain its interest in bringing proceedings in the present case. It also decided to bring an action on the basis of Article 263 TFEU against that latter decision which, as has been concluded in paragraphs 38 and 39 above, has caused it to lose its interest in bringing proceedings in the present case.
43 In those circumstances, the applicant must be ordered to bear its own costs and to pay those incurred by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. There is no further need to adjudicate on the claims of Internationaler Hilfsfonds eV seeking annulment of the European Commission’s decision of 14 February 2005 refusing it access to the file relating to contract LIEN 97-2011;
2. Internationaler Hilfsfonds shall bear its own costs and pay those incurred by the Commission.
Luxembourg, 21 September 2011.