Judgments nº T-362/08 of The General Court, Thursday January 13, 2011

• Resolution Date: Thursday January 13, 2011
• Issuing Organization: The General Court
• Decision Number: T-362/08

In Case T‑362/08,

IFAW Internationaler Tierschutz-Fonds gGmbH, established in Hamburg (Germany), represented by S. Crosby, Solicitor, and S. Santoro, lawyer,

applicant,

supported by

Kingdom of Denmark, represented by J. Bering Liisberg and B. Weis Fogh, acting as Agents,

by

Republic of Finland, represented initially by J. Heliskoski, M. Pere and H. Leppo, and later by J. Heliskoski, acting as Agents,

and by

Kingdom of Sweden, represented by K. Petkovska, A. Falk and S. Johannesson, acting as Agents,

interveners,

v

European Commission, represented by C. O’Reilly and P. Costa de Oliveira, acting as Agents,

defendant,

APPLICATION for the annulment of the Commission’s decision of 19 June 2008 refusing to grant the applicant access to a document sent to the Commission by the German authorities in connection with a procedure for the declassification of a site protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7),

THE GENERAL COURT (Eighth Chamber),

composed of M.E. Martins Ribeiro, President, N. Wahl and A. Dittrich (Rapporteur), Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 16 April 2010,

gives the following

Judgment

Legal context

1 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) defines the principles, conditions and limits of the right of access to documents of those institutions provided for by Article 255 EC. The regulation has been applicable since 3 December 2001.

2 Article 2 of Regulation No 1049/2001 provides:

‘1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.

…

3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.

   …’

   3 Article 3 of Regulation No 1049/2001 states:

   ‘For the purpose of this Regulation:

   (a) “document” shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility;

   (b) “third party” shall mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and third countries.’

   4 Article 4 of the Regulation, which sets out the exceptions to the aforementioned right of access, states the following:

   ‘1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

   (a) the public interest as regards:

   – public security,

   – defence and military matters,

   – international relations,

   – the financial, monetary or economic policy of the Community or a Member State;

   …

3. …

   Access 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 if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.

5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.

6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.’

   5 Article 9 of the regulation, which governs the treatment of sensitive documents, provides:

   ‘1. Sensitive documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as “TRÈS SECRET/TOP SECRET”, “SECRET” or “CONFIDENTIEL” in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters.

2. Applications for access to sensitive documents under the procedures laid down in Articles 7 and 8 shall be handled only by those persons who have a right to acquaint themselves with those documents. These persons shall also, without prejudice to Article 11(2), assess which references to sensitive documents could be made in the public register.

3. Sensitive documents shall be recorded in the register or released only with the consent of the originator.

   …’

   6 Article 6(4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) is worded as follows:

   ‘If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.

   Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’

   Background to the dispute

   7 The applicant, IFAW Internationaler Tierschutz-Fonds gGmbH, is a non-governmental organisation active in the field of the preservation of animal welfare and nature conservation.

   8 Having received a request from the Federal Republic of Germany on the basis of the second subparagraph of Article 6(4) of Directive 92/43, the Commission of the European Communities delivered on 19 April 2000 an opinion in favour of the carrying out of an industrial project on the Mühlenberger Loch site, a protected zone under the directive. The project consisted in the expansion of the factory belonging to Company D for the purposes of the final assembly of the Airbus A3XX.

   9 By letter of 20 December 2001 to the Commission, the applicant requested access to various documents received by the Commission in connection with the examination of the abovementioned industrial project, namely the correspondence originating from the Federal Republic of Germany, the City of Hamburg and the German Chancellor.

   10 Taking the view that Article 4(5) of the regulation prohibited it from disclosing the documents in question, on 26 March 2002 the Commission adopted a decision refusing the applicant access to certain documents which it had received in connection with the procedure upon completion of which the Commission had delivered its opinion of 19 April 2000.

   11 By application lodged at the Registry of the Court on 4 June 2002, the applicant brought an action for the annulment of the Commission’s decision of 26 March 2002.

   12 By its judgment of 30 November 2004 in Case T‑168/02 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR II‑4135, the Court dismissed the action as unfounded.

   13 On 10 February 2005 the Kingdom of Sweden, an intervener in Case T-168/02, lodged an appeal before the Court of Justice against the judgment of the Court of First Instance (now the General Court) in that case.

   14 In its judgment of 18 December 2007 in Case C‑64/05 Sweden v Commission [2007] ECR I‑11389, the Court of Justice set aside the judgment in IFAW Internationaler Tierschutz-Fonds v Commission, cited in paragraph 12 above, and annulled the Commission’s decision of 26 March 2002.

   15 As a result of the judgment in Sweden v Commission, cited in paragraph 14 above, the applicant, by letter of 13 February 2008 to the Commission, repeated its request for access to the documents received by the Commission in relation to the examination of the Mühlenberger Loch project and originating from the German authorities.

   16 By letter of 20 February 2008, the Commission acknowledged receipt of the applicant’s letter of 13 February 2008.

   17 On 26 March 2008 the applicant asked the Commission to reply to its request of 13 February 2008.

   18 By letter of 7 April 2008 the Commission informed the applicant that consultation was in progress with the German authorities concerning disclosure of the documents requested.

   19 On 9 April 2008, the applicant once again asked the Commission to reply to its request before 22 April 2008.

   20 As no reply was received from the Commission by that date, the applicant made a confirmatory application by letter of 29 April 2008.

   21 On 19 May 2008 the Commission wrote to the applicant, acknowledging receipt of the confirmatory request and stating that a reply would be given to the applicant within the period specified by Regulation No 1049/2001.

   22 On 19...