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Language of document : ECLI:EU:T:2015:675

Case T‑245/11

ClientEarth
and
The International Chemical Secretariat

European Chemicals Agency (ECHA)

(Access to documents — Regulation (EC) No 1049/2001 — Documents held by ECHA — Documents deriving from a third party — Time-limit for response to an application for access — Refusal of access — Exception relating to protection of the commercial interests of a third party — Exception relating to protection of the decision-making process — Overriding public interest — Environmental information — Emissions into the environment)

Summary — Judgment of the General Court (Second Chamber), 23 September 2015

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Handwritten signature of a lawyer — Application lodged in the name of two applicants — Signature preceded by the name of only one of the applicants — Admissibility — Conditions

(Rules of Procedure of the General Court (1991), Arts 43(1), first para., and 44(1))

2. Actions for annulment — Admissibility criteria — Natural or legal persons — Action brought by several applicants against the same decision — Capacity to act of one of them — Admissibility of the action as a whole

(Art. 263, fourth para., TFEU)

3. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Assessment of those effects by reference to the substance of the measure

(Art. 263 TFEU)

4. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Refusal of access to a document on the ground that it does not exist or is not held by the institution concerned — Fact not capable of rendering the regulation inapplicable

(European Parliament and Council Regulation No 1049/2001, Arts 4 and 8(1) and (3))

5. Actions for annulment — Actionable measures — Concept — Decision refusing access to documents of an institution following a confirmatory application — Inclusion — Conditions

(Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 8(1))

6. Actions for annulment — Interest in bringing proceedings — Concept — Action capable of securing a benefit for the applicant — Interest having to subsist until the delivery of the court decision

(Art. 263, fourth para., TFEU)

7. Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Action against a decision of an EU agency refusing access to documents — Publication during the proceedings of the information sought on the agency’s website — No further interest in bringing proceedings

(Art. 263, fourth para., TFEU; European Parliament and Council Regulation No 1049/2001, Art. 8(1))

8. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Period prescribed for responding to an application for access to documents — Exceeded — Implied rejection decision — Institution concerned retaining the power to reply out of time to the request for access — Extension decision — Consequences of exceeding the time-limit

(European Parliament and Council Regulation No 1049/2001, Art. 8(1) and (2))

9. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and adoption

(Art. 15(3) TFEU; European Parliament and Council Regulation No 1049/2001, fourth and eleventh recitals and Arts 1 and 4)

10. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — Regulation No 1907/2006 — Dissemination on the internet of certain information concerning registered substances — Names and contact details of registrants — Possibility of the European Chemicals Agency (ECHA) not communicating information in the absence of a request for confidentiality by the persons concerned — None

(European Parliament and Council Regulations No 1049/2001, Art. 4(2), first indent, and No 1907/2006, Arts 10(a)(xi), 118(2)(d), and 119(2)(d))

11. EU 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 — Conditions — Concrete, actual and serious detriment to that process — Scope

(European Parliament and Council Regulations No 1049/2001, Art. 4(3), first para., and No 1907/2006, Art. 119(2))

12. EU 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 — Scope — Workload necessitated by the request for access — Not included

(European Parliament and Council Regulation No 1049/2001, Art. 4(3))

13. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal to grant access — Requirement that the institution should examine the documents specifically and individually — Possibility to base reasoning on general presumptions applying to certain categories of documents — Limits

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

14. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — Regulation No 1907/2006 — Access to documents held by the European Chemicals Agency (ECHA) — Presumption in favour of non-disclosure of information concerning the exact quantity of a substance manufactured or placed on the market — No obligation on ECHA to demonstrate undermining of the commercial interests of the persons concerned in the event of disclosure

(European Parliament and Council Regulations No 1049/2001, Art. 4, and No 1907/2006, Art. 118(2)(c))

15. EU institutions — Right of public access to documents — Request for access concerning environmental information — Application of Regulation No 1367/2006 as a lex specialis in relation to Regulation No 1049/2001 — Effect — Exceptions to the right of access to documents — Scope — Protection of commercial interests — Not included

(European Parliament and Council Regulations No 1049/2001, Art. 4(1), (2), first to third indents, (3) and (5), and No 1367/2006, Art. 6(1))

16. EU institutions — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Exceptions to the right of access to documents — Public interest justifying the disclosure of documents — Concept

(European Parliament and Council Regulations No 1049/2001, Art. 4(2), and No 1367/2006, Art. 6(1))

17. EU institutions — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Exceptions to the right of access to documents — Public interest justifying the disclosure of documents — Invocation of the principle of transparency — Need to put forward particular considerations in relation to the case

(European Parliament and Council Regulations No 1049/2001, Art. 4(2), and No 1367/2006, Art. 6(1))

18. EU institutions — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Request for access concerning environmental information — Concept — Information on the quantity of chemical substances manufactured or placed on the market — Not included

(European Parliament and Council Regulations No 1367/2006, Art. 2(1)(d)(ii), and No 1907/2006, Art. 3(15))

19. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from third parties — Requirement for prior consultation of the third parties concerned — Scope

(European Parliament and Council Regulation No 1049/2001, Art. 4(1), (2) and (4))

20. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the commercial interests of a given person — Requirement that the institution should examine the documents specifically and individually — Scope — Exclusion of the obligation — Information concerning the exact quantity of a chemical substance manufactured or placed on the market pursuant to Regulation No 1907/2006 — Conditions

(European Parliament and Council Regulations No 1049/2001, Art. 4(2), first indent, and (6), and No 1907/2006, Art. 118(2)(c))

21. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Admissibility — Similar solution for complaints raised in support of a plea — Complaint alleging breach of the principle of proportionality raised in support of a plea claiming breach of Article 4(6) of Regulation No 1049/2001 — Admissibility

(Rules of Procedure of the General Court (1991), Arts 44(1)(c), and 48(2); European Parliament and Council Regulation No 1049/2001, Art. 4(6))

22. Approximation of laws — Registration, evaluation, authorisation and restriction of chemicals — Regulation No 1907/2006 — Dissemination on the internet of certain information concerning registered substances — Total tonnage bands of substances — No possibility for a third party to oblige the European Chemicals Agency (ECHA) to communicate tonnage bands not yet established by submitting a request for access under Regulation No 1049/2001

(Aarhus Convention, Art. 4(3)(a); European Parliament and Council Regulation No 1049/2001, Arts 2(1), and 4(4), No 1367/2006, Art. 3, first para., and No 1907/2006, Arts 118(1), and 119(2)(b))

23. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Abstract statement — Inadmissibility

(Rules of Procedure of the General Court (1991), Art. 44(1)(c))

1. According to the first subparagraph of Article 43(1) of the Rules of Procedure of the Genera Court, the original of every pleading must be signed by the party’s agent or lawyer. In the case of an action drafted and introduced by a lawyer in the name of two applicants, the fact that the last page of the application contains the phrases ‘submitted respectively by’ and ‘on behalf of’ while referring to only one of the applicants cannot invalidate the conclusion that the application complies both with Article 43(1) of the Rules of Procedure and with Article 44(1) of those rules. First, there is no provision of EU law which states that such references are mandatory and that a lawyer must specify on the last page of the application, after appending his signature, the applicants concerned. Second, it cannot reasonably be maintained, having regard to the fact that each of the applicants duly conferred a power of attorney in the name of the lawyer who signed the application, that the effect of the reference to one applicant only before and after the signature of the lawyer is that the representation of that lawyer before the Court is limited to that applicant alone.

(see paras 84, 88-92)

2. Where one and the same action is involved, as soon as one of the applicants has locus standi, there is no need to consider whether or not other applicants are entitled to bring proceedings except where considerations of procedural economy exist.

(see para. 97)

3. See the text of the decision.

(see paras 101-104)

4. See the text of the decision.

(see paras 105, 106)

5. As provided by Article 8(1) of Regulation No 1049/2001 on public access to European Parliament, Council and Commission documents, the rejection of a confirmatory application is, as a general rule, capable of being challenged by an action for annulment. Whilst, admittedly, any response to a general request for information does not necessarily constitute a decision against which an action for annulment can be brought, that does not apply in the case of an application for clearly defined information, in response to which an EU agency has not confined itself to sending mere general information, but has adopted a decision rejecting the request for information. Irrespective of whether or not that agency had a duty to give access to that information, in particular under Regulation No 1049/2001, the fact remains that that was a negative decision intended to produce legal effects and therefore open to challenge by legal proceedings.

(see paras 107, 109, 110)

6. See the text of the decision.

(see paras 114, 115)

7. In the case of an action brought against the refusal of an EU agency to disclose information to which access had been applied for under Regulation No 1049/2001, where, following the bringing of the action, the requested information is disclosed on the agency’s website, the action becomes devoid of purpose and the applicant loses its interest in bringing proceedings, with the result that there is no longer any need to adjudicate. From that perspective, so far as that information is concerned, the applicants’ request can therefore be deemed to be satisfied. Annulment of the contested decision, in so far as it refuses access to that information, would therefore procure it no advantage.

(see paras 119, 120)

8. The expiry of the time-limits laid down in Article 8 of Regulation No 1049/2001 does not have the effect of depriving the institution of the power to adopt an express decision. In the field of access to documents, the legislature specified the consequences of failure to comply with the time-limits laid down in Article 8(1) and (2) of Regulation No 1049/2001, by providing, in Article 8(3) thereof, that such failure on the part of the institution is to give the applicant the right to institute judicial proceedings. The mere fact that the period prescribed for a reply to the confirmatory application is exceeded cannot however justify the annulment of the contested decision for illegality. The same is true where the lawfulness or validity of an extension decision are challenged. Even if the extension decision were to be invalid, that would permit the conclusion, at most, only that the time-limit for a reply to the confirmatory application has not been extended and, consequently, that the contested decision was adopted out of time, which does not however affect its lawfulness.

(see paras 130-132, 136)

9. See the text of the decision.

(see paras 145, 146, 202)

10. Concerning an application for access to the names and contact details of manufacturers and importers of chemical substances registered with the European Chemicals Agency (ECHA), the latter cannot base a decision refusing access on the first indent of Article 4(2) of Regulation No 1049/2001, read in conjunction with Article 118(2)(d) Regulation No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals, where those names and contact details constitute information which is covered by Article 119(2)(d) of Regulation No 1907/2006. The said Article 119(2)(d) provides for the publication on the internet of all the information appearing in the safety data sheet, except when a request for confidentiality has been made pursuant to Article 10(a)(xi) of Regulation No 1907/2006.

If, on the one hand, the rules for dissemination over the internet, established by Article 119 of Regulation No 1907/2006 are exhaustive, the first indent of Article 4(2) of Regulation No 1049/2001, read together with Article 118(2)(d) of Regulation No 1907/2006, cannot be applicable to information covered by Article 119 of that regulation and, consequently, cannot justify the refusal of access to the information on the names and contact details of registrants. If, on the other hand, the rules laid down by Article 119 of the Regulation No 1907/2006 do not, in principle, entirely exclude the rules governing access to documents laid down by Article 118 of the Regulation No 1907/2006 and Regulation No 1049/2001, the fact remains that Article 119(2)(d) of the Regulation No 1907/2006 provides that the information requested in this case must be disclosed over the internet, unless ECHA upholds a request for confidentiality. Consequently, ECHA cannot, in the absence of such a request, use as a reason for the refusal of any disclosure of the information requested the legal presumption provided for in Article 118(2)(d) of the Regulation No 1907/2006, by holding that the disclosure would undermine the protection of the commercial interests of the concerned person. The legal presumption in Article 118 of the Regulation No 1907/2006 cannot justify information being, normally, withheld, when a more specific provision, namely Article 119(2)(d) of the Regulation No 1907/2006, imposes a requirement that that information should, normally, be disclosed.

(see paras 151-153)

11. For the exception to the right of access to documents concerning protection of the decision-making process laid down by Article 4(3) of Regulation No 1049/2001 to apply, it must be shown that the access in question is likely specifically and actually to undermine the interest protected by the exception, and that the risk of that interest being undermined is reasonably foreseeable and not purely hypothetical. In addition, in order to be covered by the exception in the first subparagraph of Article 4(3) of Regulation No 1049/2001, the decision-making process must be seriously undermined. That is the case, in particular, where the disclosure of the documents in question has a substantial impact on the decision-making process. How serious it is will depend on all the circumstances of the case, and in particular the negative effects on the decision-making process to which the institution refers in connection with disclosure of the documents concerned.

Concerning an application for access to the names and contact details of manufacturers and importers of chemical substances registered with the European Chemicals Agency (ECHA), the names of registrants are not information on the decision-making process of ECHA, but rather information affected by the decision which is the outcome of that process. Access to the information requested is not liable to prevent ECHA from deciding on measures to be taken in order to meet its obligations to disclose information over the internet, under Article 119(2) of Regulation No 1907/2006. Similarly, an alleged risk of circumvention of the procedures laid down by Regulation No 1907/2006 does not relate to the decision-making process, but rather the consequences of disclosure of the information requested. It is only the decision-making process which is covered by the ground of refusal provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001.

(see paras 156, 157, 160, 162)

12. The exception to the right of access to documents laid down by Article 4(3) of Regulation No 1049/2001 serves solely to protect the decision-making process and not to ensure that the workload of the institutions concerned does not become excessive.

(see para. 161)

13. See the text of the decision.

(see paras 168-172, 231)

14. Article 118(2)(c) of Regulation No 1907/2006 includes a general presumption that information on the precise quantity of substances manufactured or placed on the market normally undermines the protection of the commercial interests of the concerned person. Where the legal presumption in Article 118(2)(c) of Regulation No 1907/2006 is applicable, the authority concerned are free to take the view that disclosure would undermine the protection of the commercial interests of the persons concerned without having to make an individual assessment of the content of each of the documents disclosure of which is requested. By reason of that legal presumption, and in the absence of specific factors which could call it into question, ECHA is not obliged to demonstrate how disclosure of the precise quantity would have undermined the commercial interests of the persons concerned.

That conclusion is not invalidated by fact that the examination required for the processing of a request for access to documents must, as a general rule, be specific and individual. That rule is subject to exceptions, inter alia where there is a general presumption that the disclosure of the document at issue would undermine one of the interests protected by the exceptions provided for in Article 4 of Regulation No 1049/2001. That is even more the case where, as here, such a presumption is expressly provided for by a provision of legislation, namely Article 118(2)(c) of Regulation No 1907/2006.

(see paras 174, 176, 177)

15. The first sentence of Article 6(1) of Regulation No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community Institutions and Bodies lays down a rule as regards the exceptions found in the first and third indents of Article 4(2) of Regulation No 1049/2001. The second sentence of Article 6(1) mentions not merely ‘other exceptions’, but the ‘other exceptions set out in Article 4 of Regulation [No 1049/2001]’. Consequently the exceptions covered by that provision are those set out in Article 4(1), the second indent of Article 4(2), and Article 4(3) and (5). Given that the protection of commercial interests is covered by the first indent of Article 4(2) of Regulation No 1049/2001, which is referred to in the first sentence of Article 6(1) of Regulation No 1367/2006, it is not included within the concept of ‘other exceptions’ in the second sentence of Article 6(1).

(see para. 187)

16. The second sentence of Article 6(1) of Regulation No 1367/2006 refers only to a ‘public interest’ in disclosure and not to an ‘overriding’ public interest within the meaning of the last sentence of Article 4(2) of Regulation No 1049/2001. It cannot therefore be inferred from the second sentence of Article 6(1) of Regulation No 1367/2006 that there is always an overriding public interest in the disclosure of environmental information.

(see para. 189)

17. Whilst it is true that an overriding public interest capable of justifying the disclosure of a document must not necessarily be distinct from the principles which underlie Regulation No 1049/2001, general considerations alone cannot provide an appropriate basis for establishing that the principle of transparency is of particularly pressing concern and capable of prevailing over the reasons justifying the refusal to disclose the documents in question, and that it is the task of the party requesting information to make specific reference to circumstances showing that there is an overriding public interest to justify the disclosure of the documents concerned.

It follows that an overriding public interest in disclosure cannot be inferred from the mere fact that the information at issue constitutes environmental information. Thus, concerning a request for environmental information concerning the exact quantity of certain dangerous substances manufactured or placed on the market, the applicant cannot rely, in a general way, on the principles that underlie Regulation No 1367/2006 read together with Regulation No 1049/2001, and fail to present any argument capable of demonstrating that, as regards the precise quantity of the substances, invocation of the principle of transparency allowing better participation of the citizen in the decision-making process represents, having regard to the particular circumstances of this case, a matter of particularly pressing concern.

(see paras 193, 194, 196)

18. Whilst Regulation No 1367/2006 does not contain an express definition of the concept of ‘emissions into the environment’, it is legitimate to conclude, having regard to the wording of Article 2(1)(d)(ii) of that regulation, that emissions can be only releases into the environment which affect or are likely to affect the elements of the environment. Thus, the mere manufacture of a substance or its placing on the market cannot per se be regarded as the release of that substance into the environment, and consequently nor can information on the quantity manufactured or placed on the market constitute information relating to emissions into the environment.

That conclusion is not invalidated by an argument that a substance which is placed on the market necessarily interacts with the environment and with human beings, with the result that the placing on the market itself constitutes an emission into the environment. First, interaction with human health or safety is not sufficient ground for the identification of an emission into the environment which affects or is likely to affect the elements of the environment. In that regard, whilst it is true that the abstract risk of an emission from a substance exists from the moment of its production and it cannot be ruled out that the placing of the substance on the market may increase that risk, the mere risk that a substance may be emitted into the environment does not justify the quantity of the substance manufactured or placed on the market being classified as information relating to emissions into the environment.

There are substances, in particular intermediates within the meaning of Article 3(15) of Regulation No 1907/2006, which, if used for their intended purposes, are not emitted into the environment. Whilst all substances, other than intermediates, are liable to be released into the environment at some time in their life cycle, that does not mean that, with respect to those substances, the quantity manufactured or placed on the market can be considered to be information relating to releases into the environment which affect or are likely to affect the elements of the environment.

(see paras 205, 206, 208-213)

19. See the text of the decision.

(see paras 222, 223)

20. It is clear from the terms of Article 4(6) of Regulation No 1049/2001 that, if only parts of the requested document are covered by one or more of the exceptions to the right of access, the remaining parts of the document are to be disclosed. Further, the principle of proportionality requires that derogations remain within the limits of what is appropriate and necessary to attain the objective pursued. In that regard, Article 4(6) of Regulation No 1049/2001 requires a specific and individual examination of the content of each document. Only such an examination of each document can enable the institution to assess the possibility of granting the party requesting information partial access. An assessment of documents by reference to categories rather than on the basis of the actual information contained in those documents is insufficient, since the examination which must be undertaken by an institution must enable it to assess specifically whether an exception invoked actually applies to all the information contained in those documents.

Concerning a request for information concerning the exact quantity of certain substances manufactured or placed on the market, ECHA is not obliged to make a case-by-case assessment, since the legal presumption in Article 118(2)(c) of Regulation No 1907/2006, that disclosure of the precise quantity undermines the protection of the commercial interests of the persons concerned, covers all the substances at issue. Moreover, the applicant has not put forward, either with respect to all those substances or with respect to specific substances, any factors which might call into question that legal presumption. Nor has it demonstrated that there is an overriding public interest which justifies, at least for some of the substances, the disclosure of the information requested. Consequently, ECHA could take the view that the information on the precise quantity of all the substances at issue was covered by the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001. Moreover, the said Article 118(2)(c) does not exceed the limits of what is appropriate and necessary in order to attain the objective pursued, namely the protection of commercial interests.

(see paras 229, 230, 232, 239)

21. Article 44(1)(c) and Article 48(2) of the Rules of Procedure of the General Court provide that the original application must state the subject-matter of the proceedings and contain a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a plea which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, must be declared to be admissible. The same applies to a complaint made in support of a plea in law.

A complaint claiming infringement of the principle of proportionality raised in the context of an action against a decision refusing access to documents, in support of a plea claiming infringement of Article 4(6) of Regulation No 1049/2001, is therefore admissible. The aim of Article 4(6) of Regulation No 1049/2001 is to contribute to compliance with that principle by permitting partial disclosure if only part of the document requested is affected by an exception to the right of access, in order not to exceed the limits of what is appropriate and necessary in order to attain the objective pursued. In that context, the reference made by the applicants to the principle of proportionality is not a new plea in law, but a complaint which amplifies the plea in law based on an infringement of Article 4(6) of Regulation No 1049/2001.

(see paras 235-237)

22. Concerning the obligation of ECHA, in accordance with Article 119(2)(b) of Regulation No 1907/2006, to publish the total tonnage band in which a substance has been registered, the said regulation does not link the obligation under Article 119(2)(b) to the right to access to documents under Article 118(1), read together with Article 2(1) of Regulation No 1049/2001. Compliance with the obligation of dissemination over the internet cannot therefore be enforced by means of a request for access to documents. From that perspective, a request for access to documents cannot compel ECHA to create certain data which does not exist, even if the dissemination of that data is laid down by Article 119 of the Regulation No 1907/2006. Consequently, ECHA is entitled to reject an application for access to the total tonnage band of certain substances on the ground that it does not hold the information requested. Since ECHA is under no obligation to consult third parties concerning information which is not in its possession, the complaint cannot be made that ECHA infringed Article 4(4) of Regulation No 1049/2001.

Further, Article 4(3)(a) of the Aarhus Convention expressly provides that a request for environmental information may be refused if the public authority to which the request is addressed does not hold the information requested. The first paragraph of Article 3 of Regulation No 1367/2006 states that Regulation No 1049/2001 shall apply to any request by an applicant for access to environmental information held by Community institutions and bodies, which also permits the conclusion that that reference concerns only documents which exist and are in the possession of the institution concerned. Consequently, even if it is assumed that the total tonnage bands constitute environmental information, that factor cannot call into question the lawfulness of the dismissal of a request for access to that information.

(see paras 252, 253, 259)

23. See the text of the decision.

(see para. 256)