JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)
19 March 1998 (1)
(Access to information Commission Decision 94/90/EC on public access to
Commission documents Refusal of access Scope of the exception relating to
the protection of the public interest Court proceedings European
Convention on Human Rights, Article 6)
In Case T-83/96,
Gerard van der Wal, a lawyer with right of audience before the Hoge Raad der
Nederlanden, established in Kraainem, Belgium, represented initially by Caroline
P. Bleeker and Laura Y.J.M. Parret, of the Hague Bar and the Brussels Bar
respectively, and subsequently by Laura Y.J.M. Parret, with an address for service
in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,
supported by
Kingdom of the Netherlands, represented by Marc Fierstra and J.S. van den
Oosterkamp, Legal Advisers, acting as Agents, with an address for service in
Luxembourg at the Embassy of the Netherlands, 5 Rue C.M. Spoo,
v
Commission of the European Communities, represented by Wouter Wils and
Ulrich Wölker, of its Legal Service, acting as Agents, with an address for service
in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service,
Wagner Centre, Kirchberg,
APPLICATION for the annulment of the Commission's decision of 29 March 1996
refusing the applicant access to letters sent by DG IV to national courts in the
context of the notice on cooperation between national courts and the Commission
in applying Articles 85 and 86 of the EEC Treaty,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fourth Chamber),
composed of: K. Lenaerts, President, P. Lindh and J.D. Cooke, Judges,
Registrar: H. Jung,
having regard to the written procedure and further to the hearing on 25 September
1997,
gives the following
Judgment
Legal background
- 1.
- In the Final Act of the Treaty on European Union signed at Maastricht on 7
February 1992 the Member States incorporated a Declaration (No 17) on the right
of access to information in these terms:
'The Conference considers that transparency of the decision-making process
strengthens the democratic nature of the institutions and the public's confidence in
the administration. The Conference accordingly recommends that the Commission
submit to the Council no later than 1993 a report on measures designed to improve
public access to the information available to the institutions.
- 2.
- In response to that Declaration, the Commission published Communication
93/C 156/05 which it sent to the Council, the Parliament and the Economic and
Social Committee on 5 May 1993, concerning public access to the institutions'
documents (OJ 1993 C 156, p. 5). On 2 June 1993 it adopted Communication 93/C
166/04 on openness in the Community (OJ 1993 C 166, p. 4).
- 3.
- In the context of those preliminary steps towards implementation of the principle
of transparency, on 6 December 1993 the Council and the Commission approved
a code of conduct concerning public access to Council and Commission documents
(OJ 1993 L 340, p. 41, hereinafter 'the Code of Conduct), which sought to
establish the principles governing access to documents held by those institutions.
- 4.
- Accordingly, in implementation of that agreement the Commission adopted, on 8
February 1994, on the basis of Article 162 of the EC Treaty, Decision 94/90/ECSC,
EC, Euratom on public access to Commission documents (OJ 1994 L 46, p. 58,
hereinafter 'Decision 94/90), under Article 1 of which the Code of Conduct was
formally adopted. The text of that Code is set out in an Annex to Decision 94/90.
- 5.
- The Code of Conduct as thus adopted by the Commission sets out a general
principle in these terms:
'The public will have the widest possible access to documents held by the
Commission and the Council.
- 6.
- For those purposes the term 'document is defined in the Code of Conduct as
meaning 'any written text, whatever its medium, which contains existing data and
is held by the Commission or the Council.
- 7.
- After briefly setting out the rules governing the lodging and processing of requests
for documents, the Code of Conduct describes the procedure to be followed, where
it is proposed to reject a request, in these terms:
'Where the relevant departments of the institution concerned intend to advise the
institution to reject an application, they will inform the applicant thereof and tell
him that he has one month to make a confirmatory application to the institution
for that position to be reconsidered, failing which he will be deemed to have
withdrawn his original application.
If a confirmatory application is submitted, and if the institution concerned decides
to refuse to release the document, that decision, which must be made within a
month of submission of the confirmatory application, will be notified in writing to
the applicant as soon as possible. The grounds of the decision must be given, and
the decision must indicate the means of redress that are available, i.e. judicial
proceedings and complaints to the ombudsman under the conditions specified in,
respectively, Articles 173 and 138[e] of the Treaty establishing the European
Community.
- 8.
- The Code of Conduct describes the factors which may be invoked by an institution
to ground the rejection of a request for access to documents in these terms:
'The institutions will refuse access to any document where disclosure could
undermine:
the protection of the public interest (public security, international relations,
monetary stability, court proceedings, inspections and investigations),
the protection of the individual and of privacy,
the protection of commercial and industrial secrecy,
the protection of the Community's financial interests,
the protection of confidentiality as requested by the natural or legal persons
that supplied the information or as required by the legislation of the
Member State that supplied the information.
They may also refuse access in order to protect the institution's interest in the
confidentiality of its proceedings.
- 9.
- In 1993 the Commission adopted Notice 93/C 39/05 on cooperation between
national courts and the Commission in applying Articles 85 and 86 of the EEC
Treaty (OJ 1993 C 39, p. 6 hereinafter 'the Notice). In the Notice, the
Commission stated that:
'37. ... national courts may, within the limits of their national procedural law, ask
the Commission and in particular its Directorate-General for Competition for the
following information.
First, they may ask for information of a procedural nature to enable them to
discover whether a certain case is pending before the Commission, whether a case
has been the subject of a notification, whether the Commission has officially
initiated a procedure or whether it has already taken a position through an official
decision or through a comfort letter sent by its services. If necessary, national
courts may also ask the Commission to give an opinion as to how much time is
likely to be required for granting or refusing individual exemption for notified
agreements or practices, so as to be able to determine the conditions for any
decision to suspend proceedings or whether interim measures need to be adopted.
The Commission, for its part, will endeavour to give priority to cases which are the
subject of national proceedings suspended in this way, in particular when the
outcome of a civil dispute depends on them.
38. Next, national courts may consult the Commission on points of law. Where
the application of Article 85(1) and Article 86 causes them particular difficulties,
national courts may consult the Commission on its customary practice in relation
to the Community law at issue. As far as Articles 85 and 86 are concerned, these
difficulties relate in particular to the conditions for applying these Articles as
regards the effect on trade between Member States and as regards the extent to
which the restriction of competition resulting from the practices specified in these
provisions is appreciable. In its replies, the Commission does not consider the
merits of the case. In addition, where they have doubts as to whether a contested
agreement, decision or concerted practice is eligible for an individual exemption,
they may ask the Commission to provide them with an interim opinion. If the
Commission says that the case in question is unlikely to qualify for an exemption,
national courts will be able to waive a stay of proceedings and rule on the validity
of the agreement, decision or concerted practice.
39. The answers given by the Commission are not binding on the courts which
have requested them. In its replies the Commission makes it clear that its view is
not definitive and that the right for the national court to refer to the Court of
Justice, pursuant to Article 177, is not affected. Nevertheless, the Commission
considers that it gives them useful guidance for resolving disputes.
40. Lastly, national courts can obtain information from the Commission
regarding factual data: statistics, market studies and economic analyses. The
Commission will endeavour to communicate these data ... or will indicate the source
from which they can be obtained.
Facts
- 10.
- The XXIVth Report on Competition Policy (1994) (hereinafter 'the XXIVth
Report) stated that the Commission had received a number of questions from
national courts pursuant to the procedure described in paragraph 9 above.
- 11.
- By letter dated 23 January 1996 the applicant, in his capacity as a lawyer and
member of a firm which deals with cases raising questions of competition at
Community level, requested copies of some of the Commission's replies to those
questions, namely:
1. The letter dated 2 August 1993 from the Director-General of the
Directorate-General for Competition (DG IV) to the Oberlandesgericht
(Higher Regional Court), Düsseldorf, concerning the compatibility of a
distribution agreement with Commission Regulation (EEC) No 1983/83 of
22 June 1983 on the application of Article 85(3) of the Treaty to categories
of exclusive distribution agreements (OJ 1983 L 173, p. 1);
2. The letter dated 13 September 1994 from Commissioner van Miert to the
Tribunal d'Instance (District Court), St Brieuc, concerning the interpretation
of Council Regulation (EEC) No 26 of 4 April 1962 applying certain rules
of competition to production of and trade in agricultural products (OJ,
English Special Edition 1959-1962, p. 129); and
3. The letter sent by the Commission in early 1995 to the Cour d'Appel (Court
of Appeal), Paris, which had asked it for an opinion on contractual
provisions concerning sales targets for motor vehicle agents in the light of
Article 85(1) of the Treaty and Commission Regulation (EEC) No 123/85
of 12 December 1984 on the application of Article 85(3) of the Treaty to
certain categories of motor vehicle distribution and servicing agreements
(OJ 1984 L 15, p. 16).
- 12.
- By letter dated 23 February 1996 the Director-General of DG IV refused the
applicant's request on the ground that disclosure of the requested letters would be
detrimental to 'the protection of the public interest (court proceedings). He
explained that:
'... When the Commission replies to questions submitted to it by national courts
before which an action has been brought for the purposes of resolving a dispute,
the Commission intervenes as an amicus curiae. It is expected to show a certain
reserve not only as regards acceptance of the manner in which the questions are
submitted to it but also as regards the use which it makes of the replies to those
questions.
I consider that, once the replies have been sent, they form an integral part of the
proceedings and are in the hands of the court which raised the question. The
points of both law and fact contained in the replies must ... be regarded, in the
context of the pending proceedings, as part of the national court's file. The
Commission has sent the replies to that national court and the decision whether to
publish that information and/or make it available to third parties is a matter
primarily for the national court to which the reply is sent.
...
- 13.
- The Director-General also referred to the need to maintain a relationship of trust
between the Community executive and the national court authorities in the
Member States. Such considerations, which are valid in all cases, must apply even
more forcibly in cases such as the present, where no final judgment has yet been
given in respect of the matters dealt with in the questions submitted to the
Commission.
- 14.
- By letter dated 29 February 1996 the applicant sent a confirmatory application to
the Secretariat-General of the Commission stating, inter alia, that he did not see
how the conduct of the national proceedings could be undermined if information
of a non-confidential nature provided by the Commission to the national court in
the context of application of Community competition law came to the attention of
third parties.
- 15.
- By letter dated 29 March 1996 (hereinafter 'the contested decision) the
Secretary-General of the Commission confirmed DG IV's decision 'on the ground
that disclosure of the replies could undermine the protection of the public interest
and, more specifically, the sound administration of justice. He continued as
follows:
'... there is a risk that disclosure of the replies requested, which comprise legal
analyses, could undermine the relationship and the necessary cooperation between
the Commission and national courts. A court which has submitted a question to
the Commission would obviously not appreciate the reply being disclosed,
particularly where the question is relevant to a pending case.
...
- 16.
- The Secretary-General added that the procedure in the present case differed
considerably from that under Article 177 of the Treaty to which the applicant had
referred in his confirmatory application.
Procedure and forms of order sought
- 17.
- In those circumstances, by application lodged at the Registry of the Court of First
Instance on 29 May 1996, the applicant brought this action.
- 18.
- By documents lodged at the Registry of the Court of First Instance on 4 and 19
November 1996 respectively, the Governments of the Kingdom of the Netherlands
and the Kingdom of Sweden sought leave to intervene in this case in support of the
applicant.
- 19.
- By order of the President of the Fourth Chamber of the Court of First Instance of
9 December 1996, those two governments were granted leave to intervene in
support of the applicant. Pursuant to its request dated 14 March 1997, the Swedish
Government's application for leave to intervene was removed from the register by
order of the President of the Fourth Chamber of 12 May 1997 and it was ordered
to bear its own costs.
- 20.
- The written procedure ended on 24 April 1997.
- 21.
- The parties presented oral argument and replied to the Court's questions at the
hearing on 25 September 1997.
- 22.
- The applicant, supported by the Kingdom of the Netherlands, claims that the Court
should:
annul the Commission's decision of 29 March 1996 and
order the Commission to pay the costs.
- 23.
- The Commission contends that the Court should:
dismiss the application and
order the applicant to pay the costs.
Law
- 24.
- The applicant raises two pleas in law in support of his action, alleging infringement
of Decision 94/90 and infringement of Article 190 of the Treaty, respectively.
The first plea, alleging infringement of Decision 94/90
Arguments of the parties
- 25.
- The applicant submits, first, that the exception relating to 'court proceedings
provided for in the Code of Conduct applies only to proceedings to which the
Commission is a party. The exception cannot therefore be relied on in this case.
- 26.
- If the Court were to consider that the exception relating to 'court proceedings
also applies to proceedings to which the Commission is not a party, the applicant
submits, in the alternative, that disclosure of the documents in issue does not
undermine the cooperation between the Commission and national courts or
adversely affect the public interest. There is no basis for the Commission's
assertion that disclosure of such documents would not be appreciated by the
national court and, in any event, the feelings of the national court cannot take
precedence over the primary rule of public access.
- 27.
- The Commission is wrong to claim that in certain circumstances it is required to
refuse access to documents. In any event it has a duty to state the extent to which
its legitimate interests and the interest in the proper conduct of legal proceedings
require application of the exception to the rule of public access (Case C-54/90
Weddel v Commission [1992] ECR I-871).
- 28.
- The applicant considers that the information which might be provided by the
Commission in the context of cooperation with national courts is not in any way
confidential and points out that in this case the Commission has confirmed that
none of the letters requested was of a confidential nature.
- 29.
- It would be contrary to the tradition of public access, of review of acts of the
administration and of the conventional separation of powers if such
communications from the administration to the judiciary were not accessible.
- 30.
- The Netherlands Government considers that the Commission has given a broad
interpretation to the exceptions to the fundamental principle that the public will
receive the widest possible access to documents held by the Commission. The
effect of its interpretation of Decision 94/90 is to exclude a category of documents
from public access with no consideration of whether the content of the documents
justifies recourse to the exceptions. Letters sent by the Commission to a national
court fall within the scope of the Code of Conduct and the Commission is incorrect
in its view that it is for the national court alone to decide whether and under what
conditions such letters may be disclosed to third parties.
- 31.
- The proper conduct of proceedings before the national court would not be
impeded if information provided by the Commission to the court in the context of
an action between individuals came to the attention of third parties. National
courts would not be less disposed to request information from the Commission if
the reply might be disclosed, and even if that were in fact the case it would not
constitute sufficient grounds for holding disclosure to be incompatible with the
public interest. The Netherlands Government acknowledges that disclosure of the
documents might jeopardise the sound administration of justice if, by having access
to the information in those documents, individuals could avoid judicial proceedings
thus affecting the efficient and uniform application of Community law.
- 32.
- The relationship between the Commission and national courts is governed by the
principle of cooperation in good faith, pursuant to Article 5 of the Treaty. The
Commission does not act as an expert in the context of the notice.
- 33.
- Finally, the Netherlands Government submits that the Commission has not carried
out an individual assessment of each specific case.
- 34.
- In response to the applicant's first argument, the Commission points out that it
starts from the assumption that the contested decision falls within the scope of
Decision 94/90. It rejects the interpretation that the exception relating to 'court
proceedings applies only to proceedings to which the Commission is a party. The
rule set out in the Code of Conduct is broad enough to include Commission letters
drafted in the context of cooperation with national courts.
- 35.
- As regards the second argument concerning the protection of the public interest,
it is not necessary to assess the interests at issue, since such an assessment is
necessary only where the Commission refuses access to a document in order to
protect the confidentiality of its proceedings (Case T-105/95 WWF UK v
Commission [1997] ECR II-313, paragraph 59). It is nevertheless apparent from
the two replies sent to the applicant that his request was examined on its own
merits. In this case it is sufficient that there is a possibility that disclosure might
undermine the protection of the public interest, in particular in the case of court
proceedings, for the Commission to be obliged to refuse access to the document
at issue.
- 36.
- Disclosure of the replies given by the Commission in the context of the Notice
could indeed undermine the protection of the public interest (court proceedings),
and not only in the situation evoked by the Netherlands Government. When a
national court applies Articles 85(1) and 86 of the Treaty, it does so on the basis
of its autonomous jurisdiction and in a manner determined in principle by national
procedural rules (Case C-60/92 Otto v Postbank [1993] ECR I-5683, paragraph 14,
and Case C-234/89 Delimitis v Bräu [1991] ECR I-935, paragraph 53). It follows
from those principles that if a national court submits a request to the Commission
it is for that court alone to determine on the basis of its national procedural law
whether and, if so, when and under what conditions the Commission's reply may
be disclosed to third parties. That remains the case at least for as long as the
litigation in question is pending.
- 37.
- The role of the Commission in the context of its cooperation with national courts
differs fundamentally from the role of the Court of Justice in proceedings under
Article 177 of the Treaty, to which the applicant referred in his confirmatory
application. When it answers a question referred for a preliminary ruling the Court
of Justice states the law and its judgment is binding on the national court. The
Commission, by contrast, plays a secondary role vis-à-vis the national court, which
is entirely free to decide whether or not to approach the Commission. The
Commission's role can be compared to that of an expert commissioned by a court
to provide information or an opinion. The Commission sends its answer to the
national court to deal with as it sees fit.
- 38.
- The Commission adds that its reason for refusing access to the documents is quite
separate from the question whether those documents contain business secrets or
other confidential data which the Commission is not authorised to disclose in the
context of a procedure initiated pursuant to Regulation No 17/62 of the Council of
6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty
(OJ, English Special Edition 1959-1962, p. 87). It points out, however, that it is
required to observe the rules of confidentiality as regards competition procedures
pending before it. Within those limits, it seeks to be as open as possible.
- 39.
- The Commission also rejects the Netherlands Government's assertion that the
principle that the public should have the widest possible access to documents held
by the European institutions is a fundamental principle of Community law.
- 40.
- As regards the transparency of relations between the executive and the judiciary,
it considers that the relationship between the Commission and national courts
cannot simply be equated with the relationship between the executive and the
judiciary in a traditional State.
Findings of the Court
- 41.
- Decision 94/90 is a measure granting citizens a right of access to documents held
by the Commission (WWF UK v Commission, cited above, paragraph 55). It follows
from the broad scheme of that decision that it applies generally to requests for
access to documents and that any person may request access to any Commission
document without needing to justify the request (see, in that respect,
Communication 93/C 156/05, cited at paragraph 2 above). The exceptions to that
right must be construed and applied strictly, in order not to defeat the application
of the general principle laid down in the decision (WWF UK v Commission, cited
above, paragraph 56).
- 42.
- Decision 94/90 established two categories of exception. According to the wording
of the first category, drafted in mandatory terms, 'the institutions will refuse access
to any document where disclosure could undermine ... [in particular] the protection
of the public interest (... court proceedings) (see paragraph 8 above). It follows
that the Commission is obliged to refuse access to documents falling under that
exception once the relevant circumstances are shown to exist (WWF UK v
Commission, cited above, paragraph 58).
- 43.
- It follows from the use of the form 'could, in the present conditional, that in order
to show that disclosure of documents relating to court proceedings could undermine
the protection of the public interest, as required by the case-law (see paragraph 42
above), before deciding on an application for access to such documents, the
Commission must consider in respect of each document requested whether, in the
light of the information available to it, disclosure is in fact likely to undermine one
of the facets of public interest protected by the first category of exception. Where
that is the case, the Commission must refuse access to the documents in issue (see
paragraph 42 above).
- 44.
- It is thus necessary to consider whether, and if so, to what extent the Commission
is entitled to rely on the exception based on the protection of the public interest
in order to refuse to grant access to documents sent by it to a national court in
response to a request from that court in the context of the cooperation based on
the Notice, even though the Commission is not a party to the proceedings pending
before the national court which gave rise to the request.
- 45.
- In that respect, it should be recalled that Article 6 of the European Convention on
Human Rights (hereinafter the 'ECHR) assures the right of everyone to a fair
trial. In order to guarantee that right, the case must be heard, inter alia, '... by an
independent and impartial tribunal ... (Article 6 of the ECHR).
- 46.
- It is settled case-law that fundamental rights form an integral part of the general
principles of law whose observance the Community judicature ensures (see, in
particular, Opinion 2/94 of the Court of Justice [1996] ECR I-1759, paragraph 33;
and Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR
II-0000, paragraph 53). For that purpose, the Court of Justice and the Court of
First Instance draw inspiration from the constitutional traditions common to the
Member States and from the guidelines supplied by international treaties for the
protection of human rights on which the Member States have agreed or to which
they have acceded. In that regard the ECHR has special significance (see, in
particular, the judgment in Case 222/84 Johnston v Chief Constable of the Royal
Ulster Constabulary [1986] ECR 1651, paragraph 18). Furthermore, as provided for
in Article F(2) of the Treaty on European Union, which entered into force on 1November 1993, 'the Union shall respect fundamental rights as guaranteed by the
[ECHR], and as they result from the constitutional traditions common to the
Member States, as general principles of Community law.
- 47.
- The right of every person to a fair hearing by an independent tribunal means, inter
alia, that both national and Community courts must be free to apply their own
rules of procedure concerning the powers of the judge, the conduct of the
proceedings in general and the confidentiality of the documents on the file in
particular.
- 48.
- The exception to the general principle of access to Commission documents based
on the protection of the public interest when the documents at issue are connected
with court proceedings, enshrined in Decision 94/90, is designed to ensure respect
for that fundamental right. The scope of that exception is therefore not restricted
solely to the protection of the interests of the parties in the context of specific court
proceedings, but encompasses the procedural autonomy of national and Community
courts (see paragraph 47 above).
- 49.
- Its scope therefore entitles the Commission to rely on that exception even when it
is not itself party to the court proceedings which, in the particular case, justify the
protection of the public interest.
- 50.
- In that respect, a distinction must be drawn between documents drafted by the
Commission for the sole purposes of a particular court case, such as the letters in
the present case, and other documents which exist independently of such
proceedings. Application of the exception based on the protection of the public
interest can be justified only in respect of the first category of documents, because
the decision whether or not to grant access to such documents is a matter for the
appropriate national court alone, in accordance with the essential rationale of the
exception based on the protection of the public interest in the context of court
proceedings (see paragraph 48 above).
- 51.
- When, in the context of proceedings pending before it, a national court requests
certain information from the Commission on the basis of the cooperation provided
for by the Notice, the Commission's reply is expressly provided for the purposes of
the court proceedings in question. In such circumstances, the protection of the
public interest must be regarded as requiring the Commission to refuse access to
that information, and therefore to the documents containing it, because the decision
concerning access to such information is a matter to be decided exclusively by the
appropriate national court on the basis of its own national procedural law for as
long as the court proceedings giving rise to its incorporation in a Commission
document are pending.
- 52.
- In this case, the applicant requested the production of three letters, all concerning
pending court proceedings. The applicant did not claim that those letters merely
reproduced information which was otherwise accessible on the basis of Decision
94/90. In that respect, furthermore, it should be noted that the first letter related
to the compatibility of a distribution agreement with Regulation No 1983/83, the
second concerned the application of Regulation No 26/62 and the third concerned
the interpretation of Regulation No 123/85 (see paragraph 11 above). Those
letters thus concerned points of law raised in the context of specific pending
proceedings.
- 53.
- In that respect, as the Commission has already pointed out, it is irrelevant whether
the three documents in issue contained business secrets, since the Commission's
refusal to disclose those replies was justified on the grounds set out above (see
paragraphs 45 to 52 above).
- 54.
- The role played by the Commission in the context of the cooperation put in place
by the Notice also differs from the role of the Court of Justice in proceedings
under Article 177 of the Treaty. The latter establishes a special procedure between
two court systems. The role of the Court of Justice in that procedure is to rule on
the questions raised by national courts. The national court formulates the
questions to be referred to the Court of Justice according to its own rules of
procedure which will, where necessary, ensure the confidentiality of sensitive
information. Similarly, the instructions to the Registrar of the Court of Justice
provide that, where appropriate, names or confidential data may be omitted in
publications concerning the case. In contrast, the cooperation referred to in the
Notice is not governed by any such rules of procedure. There is therefore no
reason to apply the rules concerning the publication of judgments delivered in the
context of proceedings under Article 177 to replies given by the Commission in the
context of the Notice.
- 55.
- Finally, the applicant has not shown how the principle of the separation of powers
and 'review of acts of the administration would not be respected if the replies
provided by the Commission to national courts in the context of the Notice were
not made accessible to the public merely on request to the Commission. That
argument must therefore be dismissed as unfounded.
- 56.
- For the reasons set out above, the first plea cannot be upheld.
The second plea, alleging infringement of Article 190 of the EC Treaty
Arguments of the parties
- 57.
- The applicant submits that the statement of reasons given by the Commission is
insufficient.
- 58.
- The Netherlands Government submits that a statement of reasons must be
commensurate to the nature of the measure involved. It considers that the
statement of reasons is incomprehensible because different reasons were put
forward by the Commission in the two letters. In the first the Commission referred
to 'court proceedings, whilst in the second it mentioned the 'proper
administration of justice. The recipient does not therefore have a clear view of
the reasons which led the institution to decide in the way it finally did.
- 59.
- In the pleadings, the Commission again gives an essentially different justification
for the contested decision, by referring to the nature of the cooperation between
the Commission and national courts, in the context of which the Commission must
be compared to an expert commissioned by the court to provide information.
Quite apart from the fact that the comparison is erroneous, that argument
completely obscures the grounds on which the Commission actually based its
decision to refuse access to the requested documents.
- 60.
- The Netherlands Government also considers that the two letters fail to show why
or in what way the supposed relationship of trust between the Commission and
national courts could be jeopardised if the applicant were to be granted access to
the documents. The Commission provided no justification for its view that the
national court would not appreciate disclosure of the documents in issue.
Furthermore, it is not at all clear from the statement of reasons how the possible
need to protect that relationship of trust could have other consequences if the case
at issue were no longer pending.
- 61.
- The Commission considers that the contested decision is based on sufficient
grounds, which are set out not only in the contested decision itself but also in the
letter dated 23 February 1996 from the Director-General of DG IV. Those two
letters clearly indicate the reasons for which the application for access was refused.
Furthermore, the Secretary-General of the Commission also replied to some of the
arguments put forward by the applicant in his confirmatory application dated 29
February 1996.
- 62.
- In its observations on the Netherlands Government's statement in intervention, the
Commission stresses that the grounds for the contested decision are to be found
not only in the letter dated 29 March 1996 but also in the letter dated 23 February
1996. There is no contradiction or material difference between the use of the
expression 'court proceedings in one letter and 'proper administration of justice
in the other. The relationship of trust referred to by the Commission is clearly the
relationship resulting from the obligation of cooperation in good faith laid down in
Article 5 of the Treaty.
Findings of the Court
- 63.
- It should first be noted that the duty to give reasons for a decision has a twofold
purpose, namely, on the one hand, to permit interested parties to know the
justification for the measure so as to enable them to protect their rights and, on the
other, to enable the Community judicature to exercise its power to review the
legality of the decision (see, in particular, Case C-350/88 Delacre and Others v
Commission [1990] ECR I-395, paragraph 15, and WWF UK v Commission, cited
above, paragraph 66). The question as to whether a statement of reasons satisfies
those requirements must be assessed with reference not only to its wording but also
to its context and the whole body of legal rules governing the matter in question
(Case C-122/94 Commission v Council [1996] ECR I-881, paragraph 29).
- 64.
- The Code of Conduct provides that, where the initial application for access is
rejected, the applicant is entitled to ask the institution to reconsider that rejection
without being obliged to put forward arguments challenging the validity of the first
decision. That procedure does not constitute an appeal against the refusal but an
opportunity to obtain a second assessment by the institution of the application for
access.
- 65.
- It follows that when a reply confirms the rejection of an application on the same
grounds, it is appropriate to consider the sufficiency of the reasons given in the
light of all the exchanges between the institution and the applicant, taking into
account also the information available to the applicant concerning the nature and
content of the requested documents.
- 66.
- In this case, it is clear from the applicant's letter dated 23 January 1996 and the
paragraphs of the XXIVth Report referred to therein that the applicant knew from
the outset that the Commission's letters constituted replies sent in the context of
the Notice to three national courts and that each concerned a case pending before
those courts. The subject-matter of those letters was also described in general
terms.
- 67.
- In his response dated 23 February 1996 the Director-General of DG IV relied on
the exception based on the protection of the public interest (court proceedings) and
explained that the requested letters contained points of both law and fact which
should be regarded as forming part of the national courts' files, particularly since
the cases at issue were still pending.
- 68.
- The contested decision constitutes an express confirmation of that first refusal.
Even though it refers to 'the protection of the public interest and, specifically, the
proper administration of justice, the applicant could have been in no doubt that
the Secretary-General's intention was to reject the application on the basis of the
same exception to the Code. There is no conflict between the use of the
expression 'court proceedings in the first letter and 'proper administration of
justice in the second, since the exception at issue is intended to ensure respect for
the proper administration of justice. It follows that the Commission gave essentially
the same explanation in both letters.
- 69.
- Nor, contrary to what is claimed by the Netherlands Government, does the fact that
the Commission referred to cooperation with national courts during the hearing
constitute a new ground, as that cooperation was already mentioned in the first
letter, which speaks of a 'relationship of trust between the Commission and the
national court authorities in the Member States, and was recalled in the second
letter, which refers to 'the necessary cooperation between the Commission and
national courts and to the risk that disclosure of the replies requested could
undermine that cooperation.
- 70.
- Nor can the Commission be criticised for having referred to proceedings under
Article 177 only in the second letter, as its comments constitute a response to the
comparison which the applicant sought to draw in the confirmatory application
between those proceedings and the procedure referred to in the Notice.
- 71.
- It follows from the foregoing that the Commission clearly indicated the grounds on
which it had applied the exception based on the need to protect the public interest
(court proceedings) in respect of the three replies requested, whilst taking account
of the nature of the information contained therein. The applicant was thus in a
position to know the reasons on which the contested decision was based and the
Court was able to exercise its power to review the legality of that decision.
- 72.
- It follows that the second plea cannot be accepted and the action must therefore
be dismissed in its entirety.
Costs
- 73.
- Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be
ordered to pay the costs, if they have been asked for in the successful party's
pleadings. Since the applicant has been unsuccessful and the Commission has
asked for costs, he must be ordered to pay the costs. However, under Article 87(4)
of the Rules of Procedure, the intervener must bear its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Fourth Chamber)
hereby:
1. Dismisses the application;
2. Orders the applicant to pay the costs incurred by the defendant;
3. Orders the Kingdom of the Netherlands to bear its own costs.
Delivered in open court in Luxembourg on 19 March 1998.
H. Jung
P. Lindh
Registrar
President