JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
11 June 2015 (*)
(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the award of public contracts and the conclusion of the ensuing contracts — Request seeking the production of documents in the context of criminal proceedings — Refusal of access — Exception relating to the protection of privacy and the integrity of the individual — Exception relating to the protection of the decision-making process)
In Case T‑496/13,
Colin Boyd McCullough, residing in Thessalonica (Greece), represented by G. Matsos, lawyer,
applicant,
v
European Centre for the Development of Vocational Training (Cedefop), represented initially by C. Lettmayr, acting as Agent, then by M. Fuchs, acting as Agent, and, initially, E. Petritsi, lawyer, then E. Petritsi and E. Roussou, then E. Roussou and P. Anestis, lawyers, and, lastly, M. Anestis,
defendant,
APPLICATION for annulment of Cedefop’s decision of 15 July 2013 refusing access to the minutes of its Governing Board, those of its Bureau and those of the ‘Knowledge Management System’ Steering Group for the period from 1 January 2002 to 31 December 2005; for an order that Cedefop supply the requested documents and a request to authorise, pursuant to Article 16 of Regulation (EEC) No 337/75 of the Council of 10 February 1975 establishing a European Centre for the Development of Vocational Training (OJ 1975 L 39, p. 1), and to Article 1 of the Protocol on the Privileges and Immunities of the European Union, the Greek national authorities to enter the premises and buildings of Cedefop, in accordance with the applicable Greek legislation, to investigate, search and confiscate in those premises and buildings, in order to obtain the requested documents and to investigate possible offences,
THE GENERAL COURT (Fifth Chamber),
composed of A. Dittrich, President, J. Schwarcz (Rapporteur) and V. Tomlejnović, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 14 January 2015,
gives the following
Judgment
Background to the dispute and contested decision
1 The applicant, Colin Boyd McCullough, was employed by the European Centre for the Development of Vocational Training (Cedefop) from June 1991 to the end of 2007, in particular as personal assistant to the Director from September 1997 to September 2005.
2 By letter of 21 May 2013, the applicant, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) requested Cedefop to provide access to the minutes of all meetings of its Governing Board, its Bureau and the ‘Knowledge Management System’ Steering Group (‘KMS’), for the period 1 January 2002 and 31 December 2005, stating that he needed those documents in order to prepare his defence in legal proceedings between him and Cedefop pending before the Greek courts.
3 On 11 June 2013, Cedefop responded to the applicant’s request and refused him access to all the requested documents (‘the initial decision’) on the twofold basis of Article 4(1)(b) of Regulation No 1049/2001, concerning the risk that privacy and the integrity of the individual would be undermined, and the second subparagraph of Article 4(3) of that regulation, concerning the risk that the decision-making process would be undermined when the decision in question has been taken.
4 Cedefop stated that the requested documents were of a preparatory nature and contained opinions exclusively for internal use, and their disclosure would seriously undermine the decision-making process without there being an overriding public interest in disclosure. It also stated that it was not in possession of the minutes of the KMS, following the audit carried out by the European Commission’s internal audit service (‘the IAS’) and the European Anti-Fraud Office (OLAF), raising the issue of whether those minutes even existed and noting that all the relevant documents had been sent by OLAF to the competent Greek authorities. It also stated that it was not a plaintiff but partie civile in the criminal proceedings brought by the Greek judicial authorities against several individuals, noting that the applicant had full access to the documents in those proceedings and that the proceedings were irrelevant to the request for access to documents.
5 By letter of 26 June 2013, the applicant sent Cedefop a confirmatory application for access to the documents, pursuant to Article 7(2) of Regulation No 1049/2001. He took issue with Cedefop for having interpreted the exceptions to the right of access in a manner that was too extensive and too vague and also for failing to examine whether there was a specific and actual risk that the interests protected by those exceptions would be undermined. He disputed Cedefop’s observation that it was questionable whether the KMS minutes existed, claiming that he was the rapporteur for that steering group and had himself drafted those documents. He maintained that the assertion that the pending criminal proceedings were irrelevant was incorrect and that it constituted a breach of the principle of equality of arms and he denounced the double role played by Cedefop, as a party in the criminal proceedings and the holder of public authority. Lastly, he stated that he had informed the Greek authorities of the tenor of the initial decision.
6 By decision of 15 July 2013, Cedefop rejected the applicant’s confirmatory application and refused access to the requested documents (‘the contested decision’).
7 In the contested decision, Cedefop based its refusal to grant access to the requested documents on the exception concerning the risk that privacy and the integrity of the individual would be undermined, provided for in Article 4(1)(b) of Regulation No 1049/2001, and the exception concerning the risk that the decision-making process would be undermined, provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001.
8 As regards the application of Article 4(1)(b) of Regulation No 1049/2001, Cedefop considered that the names of the members of its Governing Board and its Bureau, which were contained in those minutes, constituted personal data protected by that provision and by Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1), and that access to those documents by a third party could lead to a serious violation of the privacy and the integrity of the members, as their opinions and their views on the matters discussed would be clearly shown by those documents.
9 As regards the application of the second subparagraph of Article 4(3) of Regulation No 1049/2001, Cedefop stated that the disclosure of the minutes would prevent it from obtaining the frankly-expressed and complete views of the members of its decision-making bodies in the future, given that it would lead them to practice self-censorship, resulting in its decision-making process being seriously undermined, even once decisions had been taken. It also took the view that the request for access and the interest advanced by the applicant were of a private nature and that there was no overriding public interest in the disclosure sought.
10 As regards the KMS minutes, Cedefop reiterated that they were not in its possession and that it was unable to confirm that they existed as there was no coherent policy regarding the registration of documents at Cedefop until 2005. On that point, it also observed that the applicant had not complied with the obligations on departing members of staff to return their documents to the competent department and to the Head of Library and Documentation. Cedefop also referred to the contents of OLAF’s final report concerning the irregular tender procedures which took place from 2001 to 2005, in particular regarding the absence of a system for the registration of mail. Lastly, Cedefop requested the applicant to refrain from making unfounded and inconsistent allegations regarding breaches of Greek criminal law and regarding its role as partie civile in the pending legal proceedings.
Procedure and forms of order sought
11 The applicant brought this action by application lodged at the Registry of the General Court on 16 September 2013.
12 The applicant claims that the Court should:
– annul the contested decision;
– order Cedefop to provide him with the requested documents;
– authorise, pursuant to Article 16 of Regulation (EEC) No 337/75 of the Council of 10 February 1975 establishing a European Centre for the Development of Vocational Training (OJ 1975 L 39, p. 1) and Article 1 of the Protocol on the Privileges and Immunities of the European Union, the Greek national authorities (judicial, police, administrative and any other) to enter the premises and buildings of Cedefop, in accordance with the applicable Greek legislation, to investigate, search and confiscate in those premises and buildings, in order to obtain the requested documents and to investigate possible offences which may have been committed by any person in relation thereto;
– order Cedefop to pay the costs.
13 Cedefop contends that the Court should:
– dismiss the action as partially inadmissible and partially unfounded;
– order the applicant to pay the costs.
Law
14 Cedefop contends that the second and third heads of claim of the action must be dismissed as inadmissible, since the claim for annulment of the contested decision is, in its view, unfounded.
Admissibility
Admissibility of the claim seeking that Cedefop be ordered to produce the documents requested
15 Cedefop argues that the Court has no jurisdiction to issue directions to the EU institutions and that the claim to this effect must be dismissed as inadmissible.
16 According to case-law, it is not for the Courts of the European Union, when exercising the jurisdiction to annul acts conferred on them by Article 263 TFEU, to issue directions to the EU institutions. The only possibility open to the General Court under Article 264 TFEU is to annul the contested act. It is for the institution concerned, pursuant to Article 266 TFEU, to adopt the measures necessary to give effect to any judgment ordering annulment, exercising, subject to review by the EU judicature, the discretion which it has for this purpose, complying with both the operative part and grounds of the judgment it is required to comply with and the provisions of EU law (see, to that effect, judgments of 24 January 1995 in Ladbroke Racing v Commission, T‑74/92, ECR, EU:T:1995:10, paragraph 75, and 29 January 2013 in Cosepuri v EFSA, T‑339/10 and T‑532/10, ECR, EU:T:2013:38, paragraph 77).
17 In the reply, the applicant requests the Court to reconsider the case-law set out in paragraph 16 above on the ground that it does not ensure proper implementation of the rights conferred by Articles 47 and 48 of the Charter of Fundamental Rights of the European Union when the right to a fair trial is deliberately infringed by an institution. He submits that the power held by the institutions to implement judgments annulling measures may lead to their abuse of that power, in order to prevent European citizens from exercising their fundamental rights. In order to apply those rights, he submits, it is necessary to extend the legal protection of the citizen to cases in which a direction is issued to the institutions.
18 On this point, it is to be remembered that the European Union is a union based on the rule of law in which the acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, general principles of law and fundamental rights (judgments of 3 October 2013 in Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, ECR, EU:C:2013:625, paragraph 91, and 19 December 2013 in Telefónica v Commission, C‑274/12 P, ECR, EU:C:2013:852, paragraph 56).
19 Judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, by the Court of Justice and the courts and tribunals of the Member States. To that end, the FEU Treaty has established, by Articles 263 TFEU and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the European Union judicature (judgments in Inuit Tapiriit Kanatami and Others v Parliament and Council, cited in paragraph 18 above, EU:C:2013:625, paragraphs 90 and 92, and Telefónica v Commission, cited in paragraph 18 above, EU:C:2013:852, paragraph 57).
20 It must also be recalled that, according to case-law, the absence of other judicial remedies cannot in itself give rise to European Union jurisdiction in a legal system based on the principle of conferred powers (see, to that effect, judgments of 25 July 2002 in Unión de Pequeños Agricultores v Council, C‑50/00 P, ECR, EU:C:2002:462, paragraphs 44 and 45; Inuit Tapiriit Kanatami and Others v Parliament and Council, cited in paragraph 18 above, EU:C:2013:625, paragraph 81, and order of 7 June 2004 in Segi and Others v Council, T‑338/02, ECR, EU:T:2004:171, paragraph 38).
21 It must be pointed out in that context that, whilst Article 47 of the Charter of Fundamental Rights confers the right to an effective remedy, it is not intended to change the system of judicial review laid down by the Treaties, as is also apparent from the part of the Explanations relating to the Charter of Fundamental Rights that pertains to that article. Those explanations must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter of Fundamental Rights, be taken into consideration for the interpretation of the Charter (see, to this effect, Inuit Tapiriit Kanatami and Others v Parliament and Council, cited in paragraph 18 above, EU:C:2013:625, paragraph 97 and the case-law cited).
22 Therefore, if the system of legal remedies laid down by the Treaty is not to be completely disregarded, it is not possible to grant individuals the right to request the Court to order the EU institutions to undertake or not to undertake a specific action with a view to ensuring their effective judicial protection.
23 In addition, were the Court, at the end of the examination in the present action, to annul the contested decision, the obligation on an EU institution, under Article 266 TFEU, to comply with a judgment annulling a measure delivered by the EU judicature should lead Cedefop, the author of the annulled decision, to eliminate that illegality in the decision intended to replace it, which should be taken within a reasonable period. Were that not to occur, the applicant would be entitled, under Article 265 TFEU, to request Cedefop to take action to that effect and, in the event that Cedefop fails to adopt a position, to bring an action for failure to act before the Court seeking a declaration that the institution’s refusal is illegal. Moreover, should Cedefop, following the request to take action, adopt a new decision refusing the request for access to documents, the applicant could seek the annulment of that decision before the Court under the conditions laid down in Article 263 TFEU.
24 As regards the reference made in Article 48(2) of the Charter of Fundamental Rights, which guarantees respect for the rights of the defence of anyone who has been charged, the applicant submits that, even if the Court annulled the contested decision, Cedefop could delay the disclosure of the requested documents to the point where they would no longer be useful for the purposes of his defence in the proceedings before the Greek courts.
25 On that issue, the applicant’s line of argument is not very detailed and it does not show clearly whether the infringement of the rights of the defence which he relies upon would be committed in the criminal proceedings before the Greek courts or in the administrative procedure followed by Cedefop in the event of the annulment of the contested decision.
26 In the former situation, it must be stated that the Court has no jurisdiction to examine directly whether criminal proceedings conducted before a Member State court respect the rights of the defence of anyone who has been charged, as laid down in Article 48(2) of the Charter of Fundamental Rights.
27 In the latter situation, it must be recalled that, if the contested decision were annulled, Cedefop would have to eliminate the illegality, as found in the Court’s judgment bringing the present proceedings to an end, in the decision intended to replace the contested decision, which would have to be taken within a reasonable period (see paragraph 23 above), with the proviso that the annulment of the contested decision might not necessarily lead to the disclosure of the documents requested by the applicant. In any event, the rights of the defence referred to in Article 48(2) of the Charter of Fundamental Rights may not be relied upon in an administrative procedure such as that provided for by Regulation No 1049/2001.
28 Consequently, the applicant’s claim seeking that the Court order Cedefop to supply him with the documents to which he was refused access is inadmissible.
Admissibility of the claim seeking that the Greek judicial authorities be authorised to enter Cedefop premises
29 Cedefop contends that the claim requesting the Court to authorise the Greek judicial authorities to enter its premises is inadmissible, on the twofold ground that it is inconsistent with the purpose of the present proceedings and that the Court cannot order the Greek authorities to investigate or confiscate the documents at issue.
30 Article 16 of Regulation No 337/75 provides that the Protocol on the Privileges and Immunities of the European Union applies to Cedefop.
31 According to Article 1 of the Protocol on the Privileges and Immunities of the European Union, the premises and buildings of the European Union are inviolable, exempt from search, requisition, confiscation or expropriation. The property and assets of the European Union cannot be the subject of any administrative or legal measure of constraint without the authorisation of the Court of Justice. In those circumstances, it is for the person seeking the measure of constraint in question to request the Court of Justice to authorise a waiver of immunity (orders of 24 November 2005 in Gil do Nascimento and Others v Commission, C‑5/05 SA, EU:C:2005:723, paragraph 11, and 19 November 2012 in Marcuccio v Commission, C‑1/11 SA, EU:C:2012:729, paragraph 22).
32 It follows from the logic of Article 1 of the Protocol on the Privileges and Immunities of the European Union that a request to execute an administrative or legal measure of constraint may only be made by persons or bodies who or which are themselves seeking to execute that measure.
33 However, the applicant is seeking to have waived the immunity protecting Cedefop premises in order that a third party, namely the Greek judicial authorities, may enter and carry out investigations there. Therefore, the conditions required for the referral of a request for waiver of immunity to the EU judicature, as provided for in Article 1 of the Protocol on the Privileges and Immunities of the European Union, are not satisfied.
34 Consequently, the claim seeking that the Greek judicial authorities be authorised to enter Cedefop premises is inadmissible.
The merits of the claim for annulment of the contested decision
35 The applicant puts forward five pleas in law in support of his claim for annulment. The first plea alleges that EU law has been infringed by a misinterpretation of Article 4(1)(b) of Regulation No 1049/2001. The second plea alleges that EU law has been infringed by a misinterpretation of the second subparagraph of Article 4(3) of Regulation No 1049/2001. The third plea alleges that Cedefop’s denial of the existence of the KMS minutes is suspect. The fourth plea concerns a failure by Cedefop to fulfil its obligation to adopt practical arrangements for implementing Regulation No 1049/2001 and the application by analogy of those adopted by the Commission. The fifth plea alleges the infringement of the applicant’s rights as an accused person in criminal proceedings.
Preliminary considerations
36 It should be noted that Regulation No 1049/2001, as stipulated in the first recital in the preamble thereto, reflects the intention expressed in the second paragraph of Article 1 TEU — inserted by the Treaty of Amsterdam — of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 in the preamble to Regulation No 1049/2001, the right of public access to documents of the institutions is related to the democratic nature of those institutions (judgments of 1 July 2008 in Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, ECR, EU:C:2008:374, paragraph 34, and 21 July 2011 in Sweden v MyTravel and Commission, C‑506/08 P, ECR, EU:C:2011:496, paragraph 72).
37 To that end, Regulation No 1049/2001 is intended, as is apparent from recital 4 in the preamble thereto and from Article 1, to give the fullest possible effect to the right of public access to documents of the institutions (judgments in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraph 33, and Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 73).
38 Admittedly, that right is none the less subject to certain limitations based on grounds of public or private interest. More specifically, and in reflection of recital 11 in the preamble thereto, Article 4 of Regulation No 1049/2001 provides that the institutions are to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision (judgment in Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 74).
39 However, since they derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly (judgments in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraph 36, and Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 75).
40 Thus, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually undermine the interest protected by the exception — among those provided for in Article 4 of Regulation No 1049/2001 — upon which it is relying (judgments in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraph 43 and Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 76).
41 Furthermore, it follows from the case-law that, when examining the relationship between Regulation Nos 1049/2001 and 45/2001 for the purpose of applying the exception under Article 4(1)(b) of Regulation No 1049/2001, namely the protection of privacy and the integrity of the individual, it must be borne in mind that those regulations have different objectives. The first is designed to ensure the greatest possible transparency of the decision-making process of the public authorities and the information on which they base their decisions. It is thus designed to facilitate as far as possible the exercise of the right of access to documents, and to promote good administrative practices. The second is designed to ensure the protection of the freedoms and fundamental rights of individuals, particularly their privacy, in the handling of personal data (judgments of 29 June 2010 in Commission v Bavarian Lager, C‑28/08 P, ECR, EU:C:2010:378, paragraph 49, and of 23 November 2011 in Dennekamp v Parliament, T‑82/09, EU:T:2011:688, paragraph 23).
42 Since Regulation Nos 45/2001 and 1049/2001 do not contain any provisions granting one regulation primacy over the other, their full application, in principle, should be ensured (judgments in Commission v Bavarian Lager, cited in paragraph 41 above, EU:C:2010:378, paragraph 56, and Dennekamp v Parliament, cited in paragraph 41 above, EU:T:2011:688, paragraph 24).
43 Article 4(1)(b) of Regulation No 1049/2001, on which Cedefop, inter alia, based its refusal to disclose the requested documents in the contested decision, provides that ‘[t]he institutions shall refuse access to a document where disclosure would undermine the protection of … privacy and the integrity of the individual, in particular in accordance with [EU] legislation regarding the protection of personal data’. As is apparent from the case-law, it is an indivisible provision and requires that any undermining of privacy and the integrity of the individual must always be examined and assessed in conformity with the EU legislation concerning the protection of personal data, and in particular with Regulation No 45/2001. Article 4(1)(b) of Regulation No 1049/2001 thus establishes a specific and reinforced system of protection of a person whose personal data could, in certain cases, be communicated to the public (judgments in Commission v Bavarian Lager, cited in paragraph 41 above, EU:C:2010:378, paragraphs 59 and 60, and Dennekamp v Parliament, cited in paragraph 41 above, EU:T:2011:688, paragraph 25).
44 Where a request based on Regulation No 1049/2001 seeks to obtain access to documents including personal data, the provisions of Regulation No 45/2001 become applicable in their entirety, including Article 8 thereof (judgments in Commission v Bavarian Lager, cited in paragraph 41 above, EU:C:2010:378, paragraph 63, and Dennekamp v Parliament, cited in paragraph 41 above, EU:T:2011:688, paragraph 26).
45 The applicant’s arguments must be examined in the light of those considerations.
46 It is necessary to consider, first, the third plea of the claim for annulment of the contested decision, which essentially concerns the identification of the documents held by Cedefop, and then the first and second pleas, by which the applicant contests the exceptions to the right of access to documents which have been relied on against him.
The third plea, alleging that Cedefop’s denial of the existence of the KMS minutes is suspect.
47 In this plea, the applicant submits, primarily, that the Acting Director of Cedefop is not sincere when he asserts in the contested decision that it is questionable whether the KMS minutes ever existed, since he was the Deputy Director for part of the period in respect of which those documents were requested and he was involved in all the KMS activities and meetings. The applicant also submits that the statements made in the initial decision contradict those made in the contested decision, since the Acting Director of Cedefop first stated that the KMS minutes are no longer in Cedefop’s possession following the audit carried out by the IAS and OLAF, then that it is questionable whether those documents ever existed and, lastly and incorrectly, that the applicant did not return the documents connected with the exercise of his duties on his departure from Cedefop, the applicant not having been accused of any such breach prior to the adoption of the contested decision.
48 Cedefop disputes the applicant’s arguments.
49 It follows from the terms of Article 2(3) of Regulation No 1049/2001 that an EU institution or body clearly cannot accede to a request for access to documents which do not exist (see, to that effect and by analogy, judgments of 12 October 2000 in JT’s Corporation v Commission, T‑123/99, ECR, EU:T:2000:230, paragraph 58, and 25 June 2002 in British American Tobacco (Investments) v Commission, T‑311/00, ECR, EU:T:2002:167, paragraph 35).
50 It is case-law that a presumption of legality attaches to any statement of the institutions relating to the non-existence of documents requested. Consequently, a presumption of veracity attaches to such a statement. That is, however, a simple presumption which the applicant may rebut in any way by relevant and consistent evidence (judgment of 26 April 2005 in Sison v Council, T‑110/03, T‑150/03 and T‑405/03, ECR, EU:T:2005:143, paragraph 29; see also, to that effect and by analogy, judgments in JT’s Corporation v Commission, cited in paragraph 49 above, EU:T:2000:230, paragraph 58, and British American Tobacco (Investments) v Commission, cited in paragraph 49 above, EU:T:2002:167, paragraph 35). That presumption must be applied by analogy where the institution declares that it is not in possession of the documents requested (judgment of 19 January 2010 in Co-Frutta v Commission, T‑355/04 and T‑446/04, ECR, EU:T:2010:15, paragraph 155).
51 In the initial decision, Cedefop stated that it was not in possession of the KMS minutes following the audit carried out by the IAS and OLAF. It questioned the very fact that those documents even existed and stated that all the relevant documents had been sent by OLAF to the competent Greek authorities. In the contested decision, it repeated that it was not in possession of the minutes and that it could not confirm their existence, on account of the absence, until 2005, of a coherent policy regarding registration of documents. It also claimed that the applicant had not complied with the obligations on departing members of staff as regards the return of their documents to the competent department and to the Head of Library and Documentation, and that the OLAF final report had noted, in particular, that there was no system for registering mail.
52 First of all, contrary to the applicant’s claims (see paragraph 47 above), the responses provided by Cedefop in the initial decision and in the contested decision on the issue of the existence of the KMS minutes are not contradictory. The same statement is in fact apparent from both decisions, namely that Cedefop is not in possession of those documents. Moreover, in both decisions Cedefop expresses doubts as to whether the KMS minutes even exist. While, in the initial decision, the reference to the investigation carried out by the IAS and OLAF may suggest that the documents in question were taken by those bodies without being returned to Cedefop, whereas, in the contested decision, Cedefop implies that the applicant left the service without transferring the documents to the competent departments, Cedefop, by such — admittedly unsubstantiated — assumptions is merely attempting to explain why the KMS minutes are no longer in its possession.
53 Next, it is necessary to consider whether, in accordance with the case-law cited at paragraph 50 above, the applicant has submitted relevant and consistent evidence capable of rebutting the presumption of legality and veracity which applies to Cedefop’s statement that it is not in possession of the KMS minutes.
54 By his arguments, the applicant merely calls into question the sincerity of the statements of the Acting Director of Cedefop, who took the contested decision, on the ground that the latter was the Deputy Director of Cedefop from October 2004 to September 2010 and that, since his role would have entailed considerable involvement in all KMS activities and meetings, he would have been aware of the existence of the KMS minutes. The applicant also disputes the allegation made by Cedefop in the defence as regards the irregular and disorganised nature of the system for registering documents within it until 2005, claiming that it could have requested his cooperation in order to locate the KMS minutes and raising the issue of what action Cedefop had taken to find those minutes.
55 In terms of the facts, the applicant claims that he duly transferred all the documents in his possession and that he merely drafted the KMS minutes, the Director of Cedefop being responsible for retaining them. In the reply, he confines himself to stating that, in the present proceedings, Cedefop no longer refers to the IAS and OLAF investigation, whereas, since that was an internal investigation, any useful related documents should have been returned to Cedefop, in accordance with the applicable legislation.
56 At the hearing, the applicant produced two e-mails from a Cedefop employee, dated 12 July 2005 and 2 August 2005 respectively, to which were attached the minutes of a meeting, held on 30 June 2005 in Brussels (Belgium), of the Support Group for the ‘ReferNet’ and KMS activities. When asked about how he had obtained those documents, the applicant explained that they had been communicated to him at a hearing before the Greek court competent for the criminal proceedings brought against him, after having been produced by another person charged in the same proceedings. On the other hand, he did not give reasons for the delay in offering that evidence, contrary to the requirement in Article 48(1) of the Rules of Procedure of the General Court. It is therefore inadmissible.
57 In any event, however, neither the statements reproduced in paragraphs 54 and 55 above nor the documents referred to in paragraph 56 above, which merely demonstrate that minutes exist for a meeting of a working group other than the KMS, constitute evidence that Cedefop is in possession of the minutes of the KMS meetings to which the applicant has requested access. The applicant thus does not appear to be able to rebut the presumption of legality and veracity which applies to Cedefop’s statement that it is not in possession of those documents.
58 Accordingly, the third plea must be rejected and it must be noted that, in fact, the dispute solely concerns access to the minutes of Cedefop’s Governing Board and Bureau.
The first plea, alleging that EU law has been infringed by a misinterpretation of Article 4(1)(b) of Regulation No 1049/2001
59 There are three strands to the arguments developed in the application. First, the applicant submits that the names and functions of the members of Cedefop’s Governing Board and Bureau are not personal data. Secondly, he submits that Cedefop’s statement that the disclosure of the opinions and views expressed by the members in question would violate their privacy is contrary to the principle of transparency, since no relevant case-law relating to Article 4(1)(b) of Regulation No 1049/2001 has been invoked against him. Thirdly, he submits that the real reason for the contested decision is the conflict of interest of Cedefop’s Acting Director, who has made statements to the Greek judicial authorities.
60 In the reply, the applicant develops the first plea in three ways. First, he notes that Cedefop does not put forward any specific reason justifying application of the exception under Article 4(1)(b) of Regulation No 1049/2001 to certain documents or parts of documents but merely relies on general reasons. Secondly, he is of the opinion that the obligations stemming from Regulation No 1049/2001 are legal obligations within the meaning of Article 5(b) of Regulation No 45/2001, the refusal of access to the opinions of the members of the Governing Board, the Bureau or the KMS on grounds of the protection of personal data being applicable, as an exception, only in the event of a genuine infringement of privacy or integrity. Thirdly, he maintains that, under Article 20(1)(a) and (c) of Regulation No 45/2001, the obligation to protect personal data has ceased to apply on account of the criminal proceedings against him.
61 Cedefop primarily submits that it applied Article 4(1)(b) of Regulation No 1049/2001 in conjunction with Article 8(b) of Regulation No 45/2001 to the applicant’s request for access, maintaining that, although the applicant had not provided any convincing argument to show the need to transfer the personal data at issue, it had weighed up the interests of the parties. It submits that it explained in sufficiently specific terms, after a detailed examination of each individual document, how granting access to the minutes of the Cedefop Governing Board and Bureau would, actually and specifically, seriously undermine the protection of the privacy and integrity of the members of those bodies, since those documents reveal the opinions and views of the persons concerned and their disclosure could damage the reputation of those persons.
62 The applicant’s line of argument in his first plea may be separated into three complaints: a challenge as to the definition of personal data and application of Regulation No 45/2001; an allegation that Cedefop’s objection that the protection of the privacy of the members of the Cedefop Governing Board and Bureau could be undermined infringes the principle of transparency; and an allegation that the contested decision was taken on grounds other than those mentioned in that decision, namely the conflict of interests of Cedefop’s Acting Director.
63 The first two complaints must be examined in particular detail.
– The existence of personal data and the application of Regulation No 45/2001
64 At the outset, it is necessary to note the specific contents of the contested decision as regards the application of the exception under Article 4(1)(b) of Regulation No 1049/2001. The contested decision reads as follows:
‘It is obvious that the names of the members of the Governing Board of Cedefop and the Bureau that are included in the minutes of the respective meetings constitute personal data protected by both Regulations No 45/2001 and No 1049/2001. In view of their protection, these data cannot be disclosed to the public after the persons concerned have ceased to hold office.
Moreover, the above persons are protected as individuals by virtue of both Regulation (EC) No 45/2001 and the absolute exception introduced in Article 4(1)(b) of Regulation (EC) No 1049/2001. Cedefop considers that any access of a third party to the minutes of the meetings of its Governing Board and Bureau would lead to a serious violation of the privacy and integrity of the individual, as the minutes requested clearly demonstrate the opinions and views of all participating members on the subject-matters discussed.’
65 Although the following part of the contested decision at first sight seems to concern the exception under Article 4(1)(b) of Regulation No 1049/2001, it is clear that it introduces the ground justifying rejection of the request for access to documents on the basis of the exception under the second subparagraph of Article 4(3) of Regulation No 1049/2001, since it refers to the judgment in Sweden v MyTravel and Commission, cited in paragraph 36 above (EU:C:2011:496, paragraph 86) and the following paragraph begins with the sentence ‘[a]s a result, the disclosure of the minutes of the Governing Board and the Bureau would directly and seriously undermine Cedefop’s decision-making process’.
66 It follows from the case-law of the Court of Justice that surnames are personal data and are therefore protected by the provisions of Regulation No 45/2001 (judgments in Commission v Bavarian Lager, cited in paragraph 41 above, EU:C:2010:378, paragraph 68, and Dennekamp v Parliament, cited in paragraph 41 above, EU:T:2011:688, paragraph 27). The fact that the members of Cedefop’s decision-making bodies participated in the meetings of those bodies in connection with the exercise of their public duties and not in the private sphere, or indeed the fact that the surnames of the members of the Governing Board and the Bureau were published in the Official Journal of the European Union or on the Internet, does not affect the characterisation of their surnames as personal data (see, to that effect and by analogy, judgment of 2 October 2014 in Strack v Commission, C‑127/13 P, ECR, EU:C.2014:2250, paragraph 111).
67 Therefore, since they constitute personal data, the surnames of the members of the Cedefop Governing Board and Bureau may be transferred to a third party on the basis of Regulation No 1049/2001 only where that transfer fulfils the conditions laid down in Article 8(a) or (b) of Regulation No 45/2001 and constitutes lawful processing in accordance with the requirements of Article 5 thereof (see, to that effect, judgment in Strack v Commission, cited in paragraph 66 above, EU:C:2014:2250, paragraph 104).
68 In addition, it is for the person requesting access to establish the necessity of transferring the requested data (judgments in Commission v Bavarian Lager, cited in paragraph 41 above, EU:C:2010:378, paragraph 77, and Strack v Commission, cited in paragraph 66 above, EU:C:2014:2250, paragraph 107).
69 In his initial letter requesting access to the documents, dated 21 May 2013, the applicant stated that he wished immediate access to the documents, by 29 May 2013 at the latest, having regard to the allegations made against him by OLAF and Cedefop in the proceedings before the Greek courts and in order to supplement his written defence before the Greek Examining Magistrate, and that he was not at that time in a position to prepare his defence with regard to the abovementioned allegations. In his confirmatory request of 26 June 2013, the applicant challenged the assessments made by Cedefop in the initial decision and repeated his request for access, stating in particular that, when Cedefop acted as an authority, it was under an obligation to guarantee his right to a fair trial.
70 Having regard to the above, the applicant cannot be deemed to have proved the necessity of having the personal data at issue transferred. It must be stated that, apart from referring to a purported obligation to prepare his written defence before the Greek Examining Magistrate before 29 May 2013, which indeed would have entailed Cedefop taking a decision within a period shorter than that of 15 working days provided for in Article 7(1) of Regulation No 1049/2001, the applicant did not provide Cedefop with any arguments or express justification to prove such a necessity (see, to that effect, judgment in Dennekamp v Parliament, cited in paragraph 41 above, EU:T:2011:688, paragraph 34). In addition, as regards the obligation to prepare his written defence, the applicant did not provide any information or justification as to how the submission of the requested documents containing that data would affect the proceedings to which he is a party, and concerning the risks to which he would be exposed in procedural terms and as regards the merits of his defence in those proceedings if those documents were not submitted to the Greek Examining Magistrate.
71 Moreover, the applicant does not dispute that the necessity of having the data at issue transferred, as provided for in Article 8(a) or (b) of Regulation No 45/2001, has not been demonstrated, since he merely relies on the arguments already examined in paragraph 66 above and observes that it is contradictory for Cedefop to claim that the official functions of members of the decision-making bodies are not personal data while they are being exercised by those members and that they become personal data once the members in question cease to exercise them.
72 It is important to observe, in respect of that argument, that the contested decision contains only the assessment that the surnames of the members of Cedefop’s Governing Board and Bureau, which are personal data, cannot be disclosed after the persons concerned have ceased to hold office (see paragraph 64 above). Therefore, the criticism made by the applicant is based on an incorrect premise. Furthermore, it must be stated that Cedefop’s assessment did not concern the characterisation of the surnames of the members of the decision-making bodies, or even their functions, as personal data but merely the possibility of disclosing them under Regulation No 1049/2001. Consequently, the argument must be dismissed as ineffective.
73 In the reply, the applicant submits two arguments relating to the application of Regulation No 45/2001.
74 First, the applicant submits that the obligations stemming from Regulation No 1049/2001 are legal obligations within the meaning of Article 5(b) of Regulation No 45/2001, since the refusal of access to the opinions of members of Cedefop’s Governing Board or Bureau or of the KMS on grounds of the protection of personal data may only be applied as an exception, in the event of a genuine violation of privacy or personal integrity.
75 Secondly, the applicant claims that, under Article 20(1)(a) and (c) of Regulation No 45/2001, the obligation to protect personal data has ceased to apply on account of the criminal proceedings against him.
76 It is appropriate to recall the case-law which provides that the introduction of new pleas in law or arguments in the course of proceedings is not allowed unless they are based on matters of law or of fact which come to light in the course of the procedure (see, to that effect, judgment of 21 October 2010 in Umbach v Commission, T‑474/08, EU:T:2010:443, paragraph 60).
77 Both the arguments at issue, alleging infringement of two distinct provisions of Regulation No 45/2001, are new arguments which are not connected with the first plea as presented in the application. Although the applicant asserted at the hearing that he was thereby responding to the statement in defence, those arguments nevertheless cannot be regarded as based on matters of law or of fact which have come to light in the course of the procedure, since it is sufficiently apparent from the contested decision that, in connection with the refusal to disclose the surnames of Cedefop’s Governing Board and Bureau, that decision is based on the application of Regulation No 45/2001 (see paragraphs 8 and 64 above).
78 The argument that the opinions issued by the members of Cedefop’s Governing Board and Bureau and the KMS should be transferred to any person requesting access to them, having regard to Article 5(b) of Regulation No 45/2001, is based on the premise that Cedefop claimed, in the contested decision, that the decisions adopted by its Governing Board and Bureau and by the KMS were personal data. No such claim is apparent from the contested decision (see paragraph 64 above).
79 Consequently, the arguments concerning the application of Regulation No 45/2001 must be rejected. It follows that Cedefop was fully entitled to refuse to have the personal data constituted by the surnames of the members of its Governing Board and Bureau transferred, given the applicant’s failure to prove the necessity of having that data transferred as required under Article 8(a) or (b) of Regulation No 45/2001 (see paragraph 70 above).
– The absence of any risk that the protection of the privacy of the members of Cedefop’s Governing Board and Bureau would be undermined by the disclosure of their views and opinions
80 The applicant claims that Cedefop’s assertion that disclosure of the views and opinions expressed by the members of its decision-making bodies undermines the protection of their privacy is contrary to the principle of transparency, since no relevant case-law on Article 4(1)(b) of Regulation No 1049/2001 has been invoked in support of this assertion. He observes that Cedefop has not put forward any specific reason justifying application of the exception under Article 4(1)(b) of Regulation No 1049/2001 to certain documents or parts of documents, but simply general reasons, and that the refusal of access to the opinions of members of the Governing Board or Bureau on grounds of the protection of personal data is applicable only where there is a genuine risk that their privacy or integrity would be undermined.
81 Essentially, the applicant alleges that Cedefop did not set out a precise and specific reason warranting the application of Article 4(1)(b) of Regulation No 1049/2001, namely the existence of a risk that the protection of privacy and integrity of the individual would be undermined.
82 It must be observed that, since the exceptions under Article 4 of Regulation No 1049/2001 derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly (judgments in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraph 36; Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 75, and of 28 March 2012 in Egan and Hackett v Parliament, T‑190/10, EU:T:2012:165, paragraph 88).
83 It follows from this that the examination required for the purposes of processing a request for access to documents must be specific in nature. The mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception. In principle, such an application can be justified only if the institution has previously determined, first, that access to the document would specifically and actually undermine the protected interest and, secondly, that the risk of the protected interest being undermined is reasonably foreseeable and not purely hypothetical (judgments in Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 76, and of 7 June 2011 in Toland v Parliament, T‑471/08, ECR, EU:T:2011:252, paragraph 29, and Egan and Hackett v Parliament, cited in paragraph 82 above, EU:T:2012:165, paragraph 89).
84 Thus, if an institution decides to refuse access to a document which it has been asked to disclose, it must explain how granting access to that document could specifically and actually undermine the interest protected by the exception under Article 4(1)(b) of Regulation No 1049/2001 (see, to that effect, judgments in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraph 49, and Egan and Hackett v Parliament, cited in paragraph 82 above, EU:T:2012:165, paragraph 90).
85 So far as concerns the failure to carry out a precise and specific examination of the risk that the protection of the privacy of the members of Cedefop’s Governing Board and Bureau would be undermined, it must be stated that a reading of the contested decision confirms the very incomplete nature of Cedefop’s analysis (see paragraph 64 above). It is simply claimed that the persons concerned are protected as individuals by virtue of Regulation No 45/2001 and the absolute exception introduced in Article 4(1)(b) of Regulation (EC) No 1049/2001 and that any access of a third party to the various minutes requested would lead to a serious violation of the privacy and integrity of the individual, as those documents clearly demonstrated the opinions and views of all participating members on the subject-matters discussed.
86 Only the second ground in that part of the contested decision constitutes a justification for refusing access to the requested documents in the light of the interest protected under Article 4(1)(b) of Regulation No 1049/2001, since the first ground merely recalls that individuals are protected under that provision. However, contrary to what it contends, Cedefop, in stating that the disclosure of the requested minutes would expose the opinions and views expressed by the participating members in the meetings reported therein, neither carried out an examination demonstrating that granting access to those documents would specifically and actually undermine the privacy of those members within the meaning of Article 4(1)(b) of Regulation No 1049/2001, nor verified whether the risk of the protected interest being undermined was reasonably foreseeable and not purely hypothetical (see, to that effect, judgment in Egan and Hackett v Parliament, cited in paragraph 82 above, EU:T:2012:165, paragraph 93).
87 First, it is not apparent how the opinions and views expressed by the participants at the meetings of Cedefop’s decision-making bodies could fall within the sphere of their privacy, since those meetings were professional meetings and, although the participants might have expressed personal opinions or views at them, it has not been proved, in the absence of further details in the contested decision, that disclosure of those views or opinions could undermine the participants’ privacy.
88 Secondly, although the request for disclosure covers a considerable number of documents drawn up over four years, the contested decision does not contain any assessment of how their disclosure might specifically and actually undermine the interest protected by Article 4(1)(b) of Regulation No 1049/2001. Indeed, it must be inferred from such a finding that Cedefop has not proved that the requested documents even fall within the exception concerning the risk that the protection of privacy would be undermined (see, to that effect, judgments in Sison v Council, cited in paragraph 50 above, EU:T:2005:143, paragraph 60, and Egan and Hackett v Parliament, cited in paragraph 82 above, EU:T:2012:165, paragraph 101).
89 In the rejoinder, Cedefop refers to the case-law according to which, when a person seeks access to documents by way of a global request, the institution is permitted to reply in a global manner.
90 Admittedly, the Court of Justice has acknowledged that it is open to the institution concerned to base its decisions, as regards how granting access might specifically and actually undermine the interest protected by an exception under Article 4 of Regulation No 1049/2001, on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (judgments of 29 June 2010 in Commission v Technische Glaswerke Ilmenau, C‑139/07 P, ECR, EU:C:2010:376, paragraph 54; 21 September 2010 in Sweden v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, ECR, EU:C:2010:541, paragraph 74, and 14 November 2010 in LPN v Commission, C‑514/11 P and C‑605/11 P, ECR, EU:C:2013:738, paragraph 45).
91 Nevertheless, it is apparent from the case-law that, in order for a general presumption to be validly relied upon against a person requesting access to documents on the basis of Regulation No 1049/2001, the requested documents must be part of the same category of documents or be the same type of document and the communication of those documents must comply, moreover, with specific rules provided for by a legal measure relating to a procedure conducted before an EU institution for the purposes of which those documents were produced, as is the case with, first, documents in the administrative file relating to a procedure for reviewing State aid (see, to that effect, judgment in Commission v Technische Glaswerke Ilmenau, cited in paragraph 90 above, EU:C:2010:376, paragraphs 55 to 58), secondly, the pleadings lodged by an institution in the context of legal proceedings (see, to that effect, judgment in Sweden v API and Commission, cited in paragraph 90 above, EU:C:2010:541, paragraphs 77, 78 and 96 to 98), thirdly, the documents concerning an infringement procedure during its pre-litigation phase (see, to that effect, judgment in LPN v Commission, cited in paragraph 90 above, EU:C:2013:738, paragraphs 49 and 59 to 64) and, fourthly, documents in the file relating to a procedure under Article 81 TFEU (see, to that effect, judgment of 27 February 2014 in Commission v EnBW, C‑365/12 P, ECR, EU:C:2014:112, paragraphs 78 and 83 to 88).
92 At no point has Cedefop demonstrated that the various documents requested are part of the same category of documents, even though they consisted of the minutes of meetings of various management bodies, namely Cedefop’s Governing Board and Bureau, and, in contrast to the cases mentioned on which the EU judicature has been called to adjudicate (see paragraph 91 above), it appears at first sight unlikely that the subjects addressed by those bodies over four years might relate to the same individual procedure or area. Nor has Cedefop, moreover, referred to any rules relating to the communication of the requested documents resulting from one or more legal measures other than Regulation No 1049/2001.
93 Those arguments submitted by Cedefop must accordingly be rejected without there being any need to rule on their admissibility, even though they were raised for the first time in the rejoinder.
94 Consequently, without there being any need to consider the other arguments raised in support of the first plea, it must be concluded that Cedefop did not assess whether granting access to the requested documents would specifically and actually undermine the interest relating to the protection of privacy and the individual and that it therefore erred in law.
The second plea, alleging that EU law has been infringed by a misinterpretation of the second subparagraph of Article 4(3) of Regulation No 1049/2001
95 The applicant has developed three complaints in the application in support of the second plea. First, he submits that, given the respective powers of Cedefop’s Governing Board and Bureau, their action is not of a preparatory or preliminary nature but of a decisive nature, the grounds for their decisions together with the documents in which those grounds are set out forming part of the final phase of the decision-making process. Therefore, the applicant submits, the contested decision cannot legally be based on the risk that the interest protected under Article 4(3) of Regulation No 1049/2001 would be undermined. Secondly, he submits that there is a presumption that the disclosure of preparatory documents does not, in principle, undermine the decision-making process where the procedure with which the documents are connected has already been closed, unless the institution to which the request for access has been made, which bears the burden of proof, submits specific reasons (and not merely general reasons) explaining the risk that that process will be undermined. Thirdly, he submits that the real reason for the rejection of his request for access is the conflict of interests of Cedefop’s Acting Director.
96 In the reply, the applicant observes, in particular, that Cedefop does not raise any specific reason to justify application of the exception under the second subparagraph of Article 4(3) of Regulation No 1049/2001 to certain documents or certain parts of documents and that it has never claimed that any of the decisions taken between 2002 and 2005 concerned an administrative investigation which could be recommenced.
97 Cedefop contends that the documents drawn up by its Governing Board or its Bureau are of a preparatory nature, being minutes of meetings held prior to the adoption of the final decisions and containing reflections, negotiating strategies, possible scenarios and personal points of view. It submits that it explained in the contested decision that the disclosure of the requested documents would undermine its decision-making process by having a negative impact on the independent, objective and impartial way in which the members of the bodies concerned express their opinions, since there would be a risk that those opinions, if disclosed, would be made public. The authors of the requested documents would be led to practice self-censorship, which would prejudice the freedom of decision-making at Cedefop and would constitute an objective and reasonably foreseeable risk that the decision-making process would be undermined. It also submits that it checked whether there was an overriding public interest in disclosure of the documents, since it was not possible to take into consideration the applicant’s private interest constituted by his individual rights of the defence in criminal proceedings.
98 As regards application of the exception under the second subparagraph of Article 4(3) of Regulation No 1049/2001, the contested decision reads as follows:
‘Besides, any disclosure of these minutes would prevent Cedefop from obtaining the frankly-expressed and complete views of the members of its decision-taking bodies in the future, given that it would lead them to practice self-censorship before expressing their opinion on the subject-matters under discussion …
As a result, the disclosure of the minutes of the Governing Board and the Bureau would directly and seriously undermine Cedefop’s decision-making process, even after the decisions have been taken. The requested documents are by definition, because of their content, of preparatory nature, containing opinions for internal use only, and are part of deliberations and preliminary consultations within Cedefop.’
99 Article 4(3) of Regulation No 1049/2001 draws a clear distinction by reference to whether a procedure has been closed or not. Thus, on one hand, according to the first subparagraph of that provision, any document drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, falls within the scope of the exception for protecting the decision-making process. On the other hand, the second subparagraph of that provision provides that, after the decision has been taken, the exception at issue covers only documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned (judgment in Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 78).
100 It is thus only for part of the documents for internal use, namely those containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, that the second subparagraph of Article 4(3) of Regulation No 1049/2001 allows access to be refused even after the decision has been taken, where their disclosure would seriously undermine the decision-making process of that institution (judgment in Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 79).
101 It follows that the EU legislature took the view that, once the decision is adopted, the requirements for protecting the decision-making process are less acute, so that disclosure of any document other than those mentioned in the second subparagraph of Article 4(3) of Regulation No 1049/2001 can never undermine that process and that refusal of access to such a document cannot be permitted, even if its disclosure would have seriously undermined that process if it had taken place before the adoption of the decision in question (judgment in Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 80).
102 It is true that the mere possibility of using the exception in question to refuse access to documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned is not in any way affected by the fact that the decision has been adopted. That does not, however, mean that the assessment which the institution concerned is called upon to make in order to establish whether or not the disclosure of one of those documents is likely seriously to undermine its decision-making process must not take account of the fact that the administrative procedure to which those documents relate has been closed (judgment in Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 81).
103 The first complaint in the second plea, in particular, must be examined in the light of those principles.
104 The applicant claims that, having regard to the powers of Cedefop’s Governing Board and Bureau, their action is decisive and not preparatory, the documents produced and the reasons given for them also being of a decisive nature since they are drawn up at the final stage of the decision-making process. Therefore, it was not permissible to apply the second subparagraph of Article 4(3) of Regulation No 1049/2001.
105 The applicant also raised two further points in the reply. First, he draws attention to the absence, in the contested decision, of any specific reasons justifying application of the exception under the second subparagraph of Article 4(3) of Regulation No 1049/2001 to certain documents or certain parts of documents. Secondly, he submits that Cedefop did not argue that any of the decisions taken between 2002 and 2005 concerned an administrative investigation which might be recommenced.
106 The argument that, in the light of the powers of the bodies at issue under Regulation No 337/75, their action is not of a preparatory or preliminary nature but is decisive in nature, does not in itself seem to be conclusive. As Cedefop contends, the minutes of meetings held by its decision-making bodies before the adoption of the final decisions on the matters discussed undoubtedly contain information other than the wording of the decisions themselves and their grounds, namely reflections, negotiating strategies, possible scenarios and personal points of view. The distinction made by Cedefop between the documents relating to the preparatory meetings for the final decisions on the matters before the decision-making bodies and those final decisions themselves must be accepted, the former relating to the decision-making process and taking place prior to the adoption of the decisions, the latter reflecting the result of that process. Therefore, that argument of the applicant’s cannot call into question the legality of the contested decision.
107 Nevertheless, Cedefop’s response does not make it possible to reject the applicant’s complaint alleging that the contested decision did not contain any specific reason justifying application of the exception relating to the protection of the decision-making process to certain documents or certain parts of document. Although the distinction between documents relating to the preparatory phase of making a decision and the decisions themselves is pertinent, it is not possible, on the basis of the contested decision, to tell how Cedefop distinguished between those two categories of documents, since the decision does not show that Cedefop carried out an examination at the end of which it both provided an explanation as to how disclosure of the requested documents could specifically and actually undermine the interest protected by the exception under the second subparagraph of Article 4(3) of Regulation No 1049/2001 and demonstrated that the risk of that undermining was reasonably foreseeable and not purely hypothetical (see, to that effect, judgment in Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 76).
108 Thus, the contested decision contains only two brief grounds, which are not supported by further evidence apparent from the actual wording of that decision, to justify application of the exception relating to the risk of undermining the decision-making process even after the decision has been taken.
109 The first ground is based on the idea that any disclosure of the minutes of Cedefop’s decision-making bodies would prevent it from obtaining the frankly-expressed and complete views of the members of those bodies in the future, since it would lead them to practice self-censorship before expressing their opinion on the matters under discussion. Although such a claim may be put forward to justify a refusal to disclose documents which are part of an EU institution or body’s decision-making process, it must nevertheless be based on an examination of how such a risk may specifically and actually undermine that process. It must be stated that there is no such examination in the contested decision, since Cedefop simply sets out that claim, which it has reproduced verbatim from the case-law (see, by analogy, judgment in Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 86), without supporting it in any way or putting forward reasons as to why such a claim, which is of a general nature, is well founded in the present case.
110 The second ground is based on the statement that the requested documents are, by definition, because of their content, of preparatory nature, containing opinions for internal use, and are part of deliberations and preliminary consultations within Cedefop. By such a statement, however, Cedefop merely refers to the substantive conditions for the application of the exception under the second subparagraph of Article 4(3) of Regulation No 1049/2001, using almost exactly the same terms as the text of that provision, which provides that ‘[a]ccess to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken’. Consequently, it does not show that there was any assessment of the risk that the decision-making process would be specifically and actually undermined in the present case.
111 Furthermore, it must be pointed out that the reasons invoked by an institution and capable of justifying refusal of access to a document of which communication has been requested before the closure of the administrative procedure might not be sufficient for refusing disclosure of the same document after the adoption of the decision, without that institution explaining the specific reasons why it considers that the closure of the procedure does not exclude the possibility that that refusal of access may remain justified having regard to the risk of a serious undermining of its decision-making process (judgment in Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 82; see also, by analogy, judgment in Sweden v API and Commission, cited in paragraph 90 above, EU:C:2010:541, paragraphs 132 to 134).
112 The brief considerations set out in the contested decision in order to justify the refusal to disclose the requested documents are not in any way supported by detailed evidence allowing it to be understood exactly why disclosure of the minutes of Cedefop’s Governing Board and Bureau would have been likely seriously to undermine Cedefop’s decision-making process, even though the procedures to which those documents related had already been closed (see, to that effect, judgment in Sweden v MyTravel and Commission, cited in paragraph 36 above, EU:C:2011:496, paragraph 89).
113 Cedefop, in its arguments in defence, merely repeats the assessments made in the contested decision or stresses its need to obtain the independent, objective and impartial opinion of the members of its decision-making bodies, the fulfilment of which would be jeopardised by any disclosure, seriously undermining its decision-making process as a result of the ensuing risk of self-censorship. Moreover, it must be stated that, contrary to its assertions, Cedefop has neither adduced any evidence that the requested documents contained opinions for internal use as part of deliberations and preliminary consultations nor explained in detail how their disclosure would undermine its decision-making process. Lastly, it is apparent from paragraphs 107 to 112 above that, contrary to what it contends, Cedefop did not carry out a detailed and individual assessment of each of the minutes requested or scrutinise their actual content or even give reasons as to why its decision-making process could have been actually and seriously undermined by their disclosure.
114 As it did in connection with the first plea, Cedefop refers, in the rejoinder, to the case-law according to which the institution is permitted to reply in a global manner to a person who requests access to documents with a global request. That line of argument must on any view be rejected, for the same reasons as those set out in paragraphs 91 and 92 above.
115 Without there being any need to consider the other arguments submitted in support of the second plea, it must therefore be concluded that Cedefop did not assess whether the disclosure of the requested documents would specifically and actually undermine the interest relating to the protection of its decision-making process, having regard, in particular, to the fact that those documents were connected with decision-making processes which had already been closed.
116 Cedefop accordingly erred in law, by illegally rejecting the applicant’s request for access to documents on the basis of the exceptions under Article 4(1)(b) and the second subparagraph of Article 4(3) of Regulation No 1049/2001.
117 It follows from all the foregoing that, without it being necessary to consider the fourth and fifth pleas, the contested decision must be annulled, except in so far as concerns the refusal to disclose the surnames of Cedefop’s Governing Board and Bureau.
Costs
118 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. However, pursuant to Article 87(3) of the Rules of Procedure, the General Court may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads.
119 Since Cedefop has been unsuccessful in most of its heads of claim, it is appropriate to hold that it must bear own costs and pay three quarters of the applicant’s costs. The applicant is to bear one quarter of his costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Annuls the decision of the European Centre for the Development of Vocational Training (Cedefop) of 15 July 2013 refusing access to the minutes of its Governing Board, of its Bureau and of the ‘Knowledge Management System’ Steering Group for the period 1 January 2002 to 31 December 2005 in so far as that decision refuses access to the minutes of the Governing Board and the Bureau, except as regards access to the surnames of the members of the Governing Board and the Bureau;
2. Dismisses the action as to the remainder;
3. Declares that Cedefop shall bear its own costs and orders it to pay three quarters of the costs incurred by Mr Colin Boyd McCullough;
4. Declares that Mr McCullough shall bear one quarter of his own costs.
Dittrich | Schwarcz | Tomlejnović |
Delivered in open court in Luxembourg on 11 June 2015.
[Signatures]