ORDER OF THE GENERAL COURT (Fourth Chamber)
6 July 2022 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Aarhus Convention – Regulation (EC) No 1367/2006 – Impact assessment report and other documents relating to a legislative initiative in the environmental field – Implied refusal of access – Express decision adopted after the action was brought – No need to adjudicate)
In Case T‑792/21,
ClientEarth AISBL, established in Brussels (Belgium), represented by F. Logue, Solicitor,
applicant,
v
European Commission, represented by C. Ehrbar and A. Spina, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, L. Madise (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
makes the following
Order
1 By its action under Article 263 TFEU, the applicant, ClientEarth AISBL, seeks annulment of the implied decision of the European Commission of 12 October 2021 rejecting the confirmatory application for access to several documents relating to the European Union’s legislative initiative regarding sustainable corporate governance.
Background to the dispute
2 The applicant is an international non-profit association dedicated to safeguarding the environment and human health in the public interest.
3 On 5 July 2021, pursuant to 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) and Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 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 (OJ 2006 L 264, p. 13), the applicant applied to the Commission for access to two categories of documents relating to the European Union’s legislative initiative regarding sustainable corporate governance, namely:
– first, impact assessment report(s), in the form of a draft or already finalised;
– second, any opinion(s) issued by the Regulatory Scrutiny Board on the abovementioned impact assessment report(s).
4 On 28 July 2021, the Commission informed the applicant that, first, its application for access had been registered on 6 July 2021 under number GESTDEM 2021/4394 and, second, that it would not be in a position to deal with it within the period of 15 days from its registration, in accordance with Article 7(1) of Regulation No 1049/2001. To that end, the Commission informed the applicant that it was extending the period for replying to its application until 18 August 2021.
5 On 9 August 2021, the Commission informed the applicant that two documents falling within the scope of the application been identified. However, the Commission refused the applicant access to those documents on the basis of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001.
6 In those circumstances, on 30 August 2021, the applicant made a confirmatory application to the Commission in accordance with Article 7(2) of Regulation No 1049/2001. The following day, it received a reply stating that a decision would be taken on its application within 15 working days, expiring on 21 September 2021.
7 On 21 September 2021, the Commission informed the applicant that, pursuant to Article 8(2) of Regulation No 1049/2001 and ‘due to ongoing consultations’, the period for replying would be extended by 15 working days, that is to say until 12 October 2021.
8 On 14 October 2021, that is to say two working days after the expiry of the additional period, the Commission replied to the applicant that it was not in a position to reply to its application within the additional period, citing the need to conclude consultations with several of its services. The Commission stated that it hoped to reply to the applicant’s application at the ‘beginning of November 2021’.
9 On the date on which the present action was brought, namely 21 December 2021, the applicant had not received any reply to its confirmatory application of 30 August 2021.
Events subsequent to the bringing of the action
10 By document lodged at the Court Registry on 22 March 2022 (‘the application for a declaration that there is no need to adjudicate’), the Commission informed the Court that, on 25 February 2022, it had adopted Decision C(2022) 1335 granting the applicant full access to the documents requested on 5 July 2021, namely those previously identified by the Commission, referred to in paragraph 5 above, and two other documents falling within the scope of the request (‘the decision of 25 February 2022’). On the same day, the decision of 25 February 2022 was sent to the applicant by email.
11 On 1 March 2022, the decision of 25 February 2022 was notified to the applicant.
Forms of order sought
12 In its application submitted on 21 December 2021, the applicant claims that the Court should:
– annul the implied decision of 12 October 2021 by which the Commission rejected its confirmatory application of 30 August 2021;
– order the Commission to pay the costs.
13 In view of the adoption of the decision of 25 February 2022, in its application for a declaration that there is no need to adjudicate lodged at the Court Registry on 22 March 2022, the Commission contends that the Court should:
– declare that the present action has become devoid of purpose and that there is no need to adjudicate on it;
– order each party to bear its own costs.
14 In its observations on the application for a declaration that there is no need to adjudicate, lodged at the Court Registry on 11 April 2022, the applicant:
– claims that it does not object to the application for a declaration that there is no need to adjudicate;
– requests that the Commission should be ordered to pay all the costs.
Law
15 Under Article 130(2) and (7) of the Rules of Procedure of the General Court, on application by a party, the Court may declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.
16 In the present case, since the Commission has applied for a declaration that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, the Court, finding that it has sufficient information from the documents in the case file, has decided to give a decision on that application, without taking further steps in the proceedings.
17 According to settled case-law, the provision that the action must retain its purpose is, indeed, a prerequisite in order for the Court to exercise its powers, and requires the existence of a concrete advantage that the applicant may procure from the final judgment (see order of 28 February 2012, Schneider España de Informática v Commission, T‑153/10, EU:T:2012:94, paragraph 20 and the case-law cited).
18 In the present case, it must be held that the Commission adopted an express decision on 25 February 2022, that is to say, after the present action had been brought. It is common ground between the parties that that decision constitutes the Commission’s reply to the confirmatory application brought by the applicant on 30 August 2021 in accordance with Article 7(2) of Regulation No 1049/2001.
19 Furthermore, the applicant does not oppose the application for a declaration that there is no need to adjudicate.
20 In that regard, it should be noted that, where an implied decision refusing access has been withdrawn by the effect of an express decision taken subsequently, there is no longer any need to adjudicate on the action in so far as it is directed against that implied decision (see judgment of 2 July 2015, Typke v Commission, T‑214/13, EU:T:2015:448, paragraph 36 and the case-law cited).
21 Consequently, the adoption of the decision of 25 February 2022 had the effect of withdrawing the implied decision of refusal and therefore removed the subject matter of the action, which sought annulment of that implied decision.
22 In the light of the foregoing, it must be held that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.
Costs
23 Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
24 In the present case, it should be noted that it was the Commission’s failure to provide an express reply to the applicant’s confirmatory application within the prescribed period which led the applicant to bring the present action. The Commission granted access to the documents covered by the applicant’s application for access only after the present action had been brought.
25 In those circumstances, the Commission must be ordered to bear its own costs and to pay those incurred by the applicant.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. The European Commission is to pay the costs.
Luxembourg, 6 July 2022.