ORDER OF THE GENERAL COURT (Sixth Chamber)
8 October 2012 (*)
(Action for annulment – Access to documents – Regulation (EC) No 1049/2001 – Opinion issued by the legal service of the Council concerning a draft regulation of the Parliament and of the Council related to public access to the documents of the Parliament, of the Council and of the Commission – Confirmation of a refusal to grant full access – Inadmissibility – Period allowed for commencing proceedings – Notion of measure open to challenge for the purposes of Article 263 TFEU – Confirmatory measure)
In Case T‑62/12,
ClientEarth, established in London (United Kingdom), represented by O. Brouwer and P. van den Berg, lawyers,
applicant,
v
Council of the European Union, represented by C. Fekete and B. Driessen, acting as Agents,
defendant,
APPLICATION for the annulment of the letter of the Council of 1 December 2011 (reference 24/c/01/11) refusing to grant the applicant full access to the opinion issued by the legal service of the Council (document No 6865/09) on the draft amendments of the European Parliament to the European Commission’s draft regulation amending 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),
THE GENERAL COURT (Sixth Chamber),
composed of H. Kanninen, President, N. Wahl (Rapporteur) and S. Soldevila Fragoso, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, ClientEarth, is a charitable organisation registered with the Charity Commission for England and Wales (United Kingdom) since 26 March 2006.
2 By application of 17 June 2010 (‘the first application’), the applicant applied for full access to the opinion of the legal service of the Council (document No 6865/09) on the draft amendments of the European Parliament to the European Commission’s draft regulation amending 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) (‘the document in dispute’). By letter of the same date, the Council refused to grant that application. By letter of 8 July 2010, the applicant made a so-called ‘confirmatory’ application to the Council, in accordance with Article 8 of Regulation No 1049/2001. By decision of 26 July 2010, the Council maintained its refusal (‘the first decision’).
3 By application lodged at the Registry of the General Court on 24 September 2010, the applicant brought an action for the annulment of the first decision, which was registered as Case T‑452/10. By order of 6 September 2011 in Case T‑452/10 ClientEarth v Council, not published in the ECR, the Court dismissed the action as manifestly inadmissible.
4 The Court found that the application did not meet the requirements of the first, third and fourth paragraphs of Article 19 and the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of Article 53 thereof and the first subparagraph of Article 43(1) of the Rules of Procedure of the General Court, in so far as the applicant was not represented by a third party.
5 Following the order delivered in ClientEarth v Council, on 22 September 2011 the applicant renewed its application for access to the document in dispute (‘the new application’). By letter of 12 October 2011 the Council rejected that application. On 26 October 2011, the applicant made a confirmatory application to the Council.
6 On 15 November 2011, the applicant brought an appeal before the Court of Justice against the order in ClientEarth v Council. That appeal is still pending (Case C‑573/11 P).
7 On 1 December 2011, the Council sent the applicant a letter, to which it attached an annex entitled ‘Confirmatory application … – [r]equest for re-assessment of the [first decision]’, in which the Council informed the applicant of its refusal to grant it access to the document in dispute (‘the contested measure’). The document contains the following grounds in points 3, 6, 7 and 8:
‘3. … The arguments brought in favour of the applicant’s confirmatory request correspond essentially to those set out in the latter’s [first] application.
…
6. The applicant’s present application constitutes a renewed request under Regulation [No] 1049/2001 relating to the same document covered by the [first] decision … In substance, it amounts to requesting re-assessment of the Council’s aforementioned decision refusing public access to [the contested] document …
7. The Council could not identify any change in the legal or factual situation as compared to the situation underlying the [first] decision …, nor did the applicant refer to any such element. Accordingly, the Council considers that the conditions under which it refused the applicant’s [first] application are still present.
8. The Council therefore confirms its [first] decision taken in regard of the applicant’s [first] application … For the reasons set out in that decision, it is unable to provide full public access to [the] document [in dispute].’
Procedure and forms of order sought by the parties
8 By application lodged at the Registry of the General Court on 9 February 2012, the applicant claims that the Court should:
– annul the contested measure;
– order the Council to bear the costs incurred by it, in accordance with Article 87 of the Rules of Procedure, including the costs incurred by the interveners.
9 By document lodged at the Court Registry on 7 May 2012, the Kingdom of Denmark applied for leave to intervene in the present proceedings in support of the form of order sought by the applicant.
10 By document lodged at the Court Registry on 10 May 2012, the Council raised a plea of inadmissibility pursuant to Article 114 of the Rules of Procedure, by which it contends that the Court should:
– declare the action manifestly inadmissible or that it lacks any foundation in law, in accordance with Article 111 of the Rules of Procedure;
– in the alternative, stay the proceedings until the Court of Justice delivers its judgment in the pending case ClientEarth v Council (Case C-573/11 P),
– order the applicant to pay the costs.
11 By documents lodged at the Court Registry on 16 and 28 May 2012 respectively, the Kingdom of Sweden and the Republic of Finland sought leave to intervene in support of the form of order sought by the applicant.
12 By document lodged at the Court Registry on 11 July 2012, the applicant submitted its observations on the Council’s plea of inadmissibility. It claims that the Court should:
– reject the plea of inadmissibility as manifestly lacking any foundation in law;
– reject the application to stay the proceedings.
Law
13 Pursuant to Article 114(1) and (4) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the merits of the case. Pursuant to Article 114(3) of the Rules of Procedure, unless the Court otherwise decides, the remainder of the proceedings are to be oral. In the present case the Court considers that it has sufficient information from the documents before it and decides that there is no need to open the oral procedure.
14 The Council contends that the present action is inadmissible on the ground that it was not brought within the time‑limit prescribed in Article 263 TFEU. In that regard, first of all, the Council contends that the applicant misrepresents the facts and actually contests the first decision. Second, the Council argues that the applicant has not adduced new facts which substantially change its situation.
15 As regards the alleged failure to submit new facts, it is appropriate to examine the Council’s second complaint directly.
16 The Council submits that it is apparent from the case‑law of the Court of Justice (order of 29 June 2009 in Case C‑225/08 P Nuova Agricast v Commission, not published in the ECR, and the judgment in Case C‑362/08 P Internationaler Hilfsfonds v Commission [2010] ECR I‑669) that an applicant who requests the same document twice and who challenges both ensuing decisions before the General Court must furnish new and substantial facts to justify a request to re‑examine the earlier decision which has become final. In the Council’s view, in its second application, the applicant did not adduce new and substantial facts which change its situation, and the only reason why the applicant made a new application is the order in ClientEarth v Council, which declared its first action inadmissible. The Council submits that the inadmissibility of the first action results from factors which are attributable to the applicant and disputes that these may constitute new facts within the meaning of that case‑law.
17 The applicant contests the Council’s arguments. It submits, in essence, that, according to the last subparagraph of Article 6(1) of Regulation No 1049/2001, the applicant is not required to justify an application for access to documents. It submits that it follows precisely from the judgment in Internationaler Hilfsfonds v Commission that the case‑law on actions brought against confirmatory decisions cannot be extended to the system put in place by Regulation No 1049/2001. In that judgment, in setting aside the order of the General Court under appeal, the Court of Justice distanced itself from its earlier case‑law resulting from the order in Nuova Agricast v Commission, inter alia. According to the applicant, it is apparent from the judgment in Internationaler Hilfsfonds v Commission that, in the case of a second identical application for access to documents, the institutions are, in every instance, required to re-examine a refusal of access. That, in itself, constitutes a new assessment in fact and in law, which means that a new refusal may be reviewed by the Courts of the European Union. Thus, according to the applicant, it is entitled to bring an action against the contested measure, in accordance with the solution proposed by Advocate General Mengozzi in his Opinion in Internationaler Hilfsfonds v Commission (ECR I‑671, point 138).
18 In relation to the case which gave rise to the order in Nuova Agricast v Commission, the applicant also argues that that case differs from the present one. It submits that, in that case, the Commission was not able to carry out a re‑examination since a Member State was opposed to the disclosure of the documents requested pursuant to Article 4(5) of Regulation No 1049/2001, which, in its view, removed the application from the scope of that regulation.
19 The Court notes, at the outset, that it is settled case-law that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position are measures which may be the subject of an action for annulment (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; Case C‑131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I‑7795, paragraph 54; and Internationaler Hilfsfonds v Commission, paragraph 51).
20 It is also apparent from settled case-law concerning the admissibility of actions for annulment that it is necessary to look to the substance of the contested acts, as well as the intention of those who drafted them, to classify those acts. In that regard, it is in principle those measures which definitively determine the position of an institution upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicant, which are open to challenge and not intermediate measures whose purpose is to prepare for the definitive decision, or measures which are mere confirmation of an earlier measure which was not challenged within the prescribed period (see, to that effect, the judgments of the Court of Justice in Case C-521/06 P Athinaïki Techniki v Commission [2008] ECR I-5829, paragraph 42, and Internationaler Hilfsfonds v Commission, paragraph 52).
21 In order to ascertain whether a measure can be the subject of an action under Article 263 TFEU, it is necessary to look to its substance, rather than to the form in which it is presented (IBM v Commission, paragraph 9, and Internationaler Hilfsfonds v Commission, paragraph 55).
22 In so far as concerns the confirmatory nature of a decision, the Court notes that, according to settled case‑law, a measure can be regarded as a mere confirmation of an earlier decision only where it contains no new factors as compared with that decision (Case 23/80 Grasselli v Commission [1980] ECR 3709, paragraph 18; Case C‑417/05 P Commission v Fernández Gómez [2006] ECR I‑8481, paragraph 46; and the order in Nuova Agricast v Commission, paragraph 38).
23 The case‑law regarding confirmatory measures aims to ensure that time‑limits for the bringing of actions and the definitive nature of decisions are respected and, consequently, the principle of legal certainty protected (see, to that effect, the judgment of the Court of Justice in Case C‑299/05 Commission v Parliament and Council [2007] ECR I‑8695, paragraph 29, and the order in Nuova Agricast v Commission, paragraph 58). Rules concerning time‑limits for bringing proceedings are mandatory and must be applied by the Courts of the European Union in such a way as to ensure equality of persons before the law so as to prevent any discrimination or arbitrary treatment in the administration of justice (see, to that effect, Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 101; the order in Case C‑73/10 P Internationale Fruchtimport Gesellschaft Weichert v Commission [2010] ECR I‑11535, paragraph 50; and the order of 1 September 2011 in Case T‑101/09 Maftah v Commission, not published in the ECR, paragraphs 29 and 41).
24 With regard to Regulation No 1049/2001, it should be pointed out that Articles 7 and 8 of that regulation, by providing for a two-stage procedure, aim to achieve, first, the swift and straightforward processing of applications for access to documents of the institutions concerned and, second, as a priority, a friendly settlement of disputes which may arise. For cases in which such a dispute cannot be resolved by the parties, Article 8(1) provides two remedies, namely the institution of court proceedings or the lodging of a complaint with the European Ombudsman (Internationaler Hilfsfonds v Commission, paragraph 53).
25 That procedure, in so far as it provides for the making of a confirmatory application, enables in particular the institution concerned to re-examine its position before taking a definitive refusal decision which could be the subject of an action before the Courts of the European Union. Such a procedure makes it possible to process initial applications more promptly and, consequently, more often than not to meet the applicant’s expectations, while also enabling the institution to adopt a detailed position before definitively refusing access to the documents sought by the applicant, in particular where the applicant reiterates the request for disclosure of those documents notwithstanding a reasoned refusal by that institution (Internationaler Hilfsfonds v Commission, paragraph 54).
26 Moreover, it should be noted that Regulation No 1049/2001 confers a very extensive right of access to the documents of the institutions concerned, there being, in accordance with Article 6(1) of the regulation, no requirement to state reasons for the application in order to enjoy that right. Furthermore, pursuant to Article 4(7) thereof, the exceptions laid down in Article 4(1) to (3) of the regulation apply only for the period during which protection is justified on the basis of the content of the document (Internationaler Hilfsfonds v Commission, paragraph 56).
27 It follows that a person may make a new demand 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 (Internationaler Hilfsfonds v Commission, paragraph 57).
28 In the present case, the Court notes, first of all, that the first application and the new application are both based on Regulation No 1049/2001, that is to say they have the same legal basis (see, to that effect, the order in Nuova Agricast v Commission, paragraph 44).
29 Second, the two applications concern the same document, namely the document in dispute.
30 Third, the two applications were made by the same person, the applicant in this instance.
31 Fourth, during its re-examination, the Council was not able to identify any new elements. As noted in paragraph 7 above, the contested measure refers explicitly to the grounds of the first decision.
32 Finally, the applicant has not demonstrated that its legal or factual situation has changed since the adoption of the first decision. In its pleadings, the applicant has not identified any new facts, other than the events resulting from the legislative process, but without explaining how such general events were such as to change its personal situation (see, to that effect, the order in Nuova Agricast v Commission, paragraph 41) and in a significant manner (see, to that effect, the Opinion of Advocate General Mengozzi in Internationaler Hilfsfonds v Commission, paragraphs 150 and 166 and the case‑law cited).
33 Moreover, the applicant misreads the judgment in claiming that it is apparent from the judgment in Internationaler Hilfsfonds v Commission that any measure of an institution refusing access to documents following a re‑examination which does not reveal any new element thus constitutes a new assessment in fact and in law which renders admissible an action brought against the validity of an earlier refusal of access.
34 In noting expressly, in paragraphs 52 and 57 of that judgment, that ‘measures which are mere confirmation of an earlier measure which was not challenged within the prescribed period’ do not constitute measures which are open to challenge, and that the resubmission of an application for access to documents none the less 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’, the Court of Justice confirmed its case‑law on confirmatory measures, pursuant to which a measure can be regarded as a mere confirmation of an earlier decision only where it contains no new factors as compared with that decision (see paragraph 22 above). In paragraph 58 of that judgment, the Court of Justice stated that the contested refusal at issue in that case established a ‘definitive position’, since it brought to an end a long series of successive steps taken by the applicant, including, in particular, a decision of the Ombudsman, pursuant to which the Commission’s administrative practice constituted a case of maladministration. The Court concluded (paragraph 62) that the contested measure could be the subject of an action for annulment. Consequently, contrary to what was held by the General Court, those steps actually constituted, in the view of the Court of Justice, a change in the applicant’s factual situation which had taken place in the meantime.
35 The Court also rejects the applicant’s argument that the case‑law on confirmatory decisions is not transposable to applications for access to documents falling within the scope of Regulation No 1049/2001. In fact, the Court of Justice has already had the opportunity to reject such an argument (the order in Nuova Agricast v Commission, paragraph 60).
36 As regards the argument that the opposition by a Member State, pursuant to Article 4(5) of Regulation No 1049/2001, to the disclosure of a document originating from that State results in the removal of such documents from the scope of that regulation and, consequently, renders any re-examination of an application for access impossible, it is sufficient to note that that argument is not in accordance with the case‑law of the Court of Justice (Case C‑64/05 P Sweden v Commission [2007] ECR I‑11389, paragraphs 75 and 76, and Case C‑135/11 P IFAW Internationaler Tierschutz-Fonds v Commission [2012] ECR I‑0000, paragraphs 57 to 59).
37 It is apparent from all of the above that the contested measure constitutes a measure which is purely confirmatory of the first decision. Consequently, an action cannot be brought against it under Article 263 TFEU.
38 For the sake of completeness, the Court notes that, unlike in the present case, in its order of 8 June 2005 in Case T‑139/03 Nuova Agricast v Commission, not published in the ECR, it actually reviewed the substance of the defendant institution’s decision to refuse access to documents in the context of a first action for annulment. No appeal was brought against that order. Then, in its order of 12 March 2008 in Case T‑443/07 Nuova Agricast v Commission, not published in the ECR, the Court declared inadmissible the second action brought against the later decision refusing access to the same documents. That order was upheld on appeal by the Court of Justice in its order of 29 June 2009 in Nuova Agricast v Commission. In that regard, the Court cannot uphold an a contrario interpretation of the approach adopted in the latter order, whereby an action is declared admissible in so far as the merits of the refusal to grant access to the documents in the first decision were not reviewed by the Courts of the European Union as is the case in this instance. Given that only a strict interpretation of the rules of procedure determining the time‑limits for bringing proceedings satisfies the requirement of legal certainty and the need to prevent any discrimination or arbitrary treatment in the administration of justice (see paragraph 23 above and, to that effect and by analogy, Case C‑426/10 P Bell & Ross v OHIM [2011] ECR I‑0000, paragraphs 43, 54 and 55), an a contrario interpretation is impossible (see, by analogy, Case 8/55 Fédération Charbonnière de Belgique v High Authority [1956] ECR 245, at 305 and 306, and Case 9/56 Meroni v High Authority [1958] ECR 133, at 9 and 27). As is apparent from the order of 29 June 2009 in Nuova Agricast v Commission, paragraph 59, the provisions of Regulation No 1049/2001 do not allow the conclusion to be reached that, in the light of the very broad right of access which it confers, the regulation can justify in its field, a priori, a complete disregard of the rules on time-limits for bringing proceedings resulting from the principle of legal certainty.
39 In any event, since the inadmissibility of the first action results from circumstances under the applicant’s control, as rightly noted by the Council, the inadmissibility of the present action has the effect neither of removing the Council’s action from the scope of judicial review nor of depriving the applicant of its right to an effective remedy before the Courts of the European Union, nor of restricting its access to such. In the light of the observations made in paragraph 38 above, the fact that the first action has been declared inadmissible is irrelevant in relation to the case‑law on confirmatory measures.
40 It follows from all the foregoing that the action is inadmissible.
41 Since the present action is inadmissible, there is no need to adjudicate on the applications for leave to intervene.
Costs
42 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no need to adjudicate on the applications for leave to intervene of the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden.
3. ClientEarth is ordered to pay the costs.
Luxembourg, 8 October 2012.