Judgments nº T-727/15 of The General Court, January 23, 2017

• Resolution Date: January 23, 2017
• Issuing Organization: The General Court
• Decision Number: T-727/15

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to an infringement procedure opened by the Commission against the Czech Republic - Refusal of access - Exception concerning the protection of inspections, investigations and audits - General presumption - Overriding public interest - Aarhus Convention - European Convention for the Protection of Human Rights and Fundamental Freedoms)

In Case T-727/15,

Association Justice & Environment, z.s., established in Brno (Czech Republic), represented by S. Podskalská, lawyer,

applicant,

v

European Commission, represented by L. Pignataro-Nolin, F. Clotuche-Duvieusart and M. Konstantinidis, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU seeking the annulment of the initial Commission decision of 19 August 2015 and the confirmatory Commission decision of 15 October 2015 refusing to grant the applicant access to certain documents contained in the file of the infringement procedure 2008/2186 against the Czech Republic and regarding the application of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1),

THE GENERAL COURT (Eighth Chamber),

composed of A. M. Collins (Rapporteur), President, M. Kancheva and R. Barents, Judges,

Registrar: E. Coulon,

having regard to the fact that no request for a hearing was submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

Background to the dispute

1 The applicant, Association Justice & Environment, z.s., is an association governed by Czech law, consisting of a certain number of associations established in several Member States of the European Union, whose object is the adoption and application of stronger environmental legislation to protect the environment, people and nature.

2 On 7 August 2015, the applicant submitted to the European Commission an application for access to certain documents relating to the infringement procedure 2008/2186 opened by that institution against the Czech Republic concerning the application of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1). In its application for access, the applicant claimed that disclosure of the requested documents was warranted by the existence of an overriding public interest.

3 By letter of 19 August 2015, the Commission rejected that application for access, 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) (‘the initial decision’). The Commission stated, in particular, that the requested documents related to an infringement procedure under way and were covered by the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of the purpose of inspections, investigations and audits and that there was no overriding public interest justifying their disclosure.

4 On 8 September 2015, the applicant submitted a confirmatory application for access to the abovementioned documents pursuant to Regulation No 1049/2001, emphasising the fact that, in its view, there was in the present case an overriding public interest justifying their disclosure.

5 By letter of 15 October 2015, the Commission confirmed the refusal of access to the requested documents (‘the confirmatory decision’). It stated that the application covered five documents, namely, its letter of formal notice of 28 January 2010, the reply of the Czech Republic of 25 March 2010, its reasoned opinion of 1 October 2010, its additional letter of formal notice of 22 February 2013 and its reasoned opinion of 26 March 2015. It examined the application for access in the light of Regulation No 1049/2001 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).

6 In the confirmatory decision, the Commission based its refusal on the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, namely, the protection of the purpose of inspections, investigations and audits. In fact, infringement procedure 2008/2186 was still under way at the time of the application for access. Accordingly, disclosure of documents featuring in the file for that procedure would have risked adversely affecting the dialogue between the Commission and the Czech Republic during the pre-litigation stage. Thus, in the confirmatory decision, the Commission based its refusal on the general presumption of non-disclosure of the documents of the infringement procedure during its pre-litigation stage. Furthermore, it reached the conclusion that Article 6(1) of Regulation No 1367/2006 was not applicable and that no overriding public interest justified disclosure of the requested documents. Finally, it added that the applicant could not be given partial access because the requested documents were fully covered by the exception laid down in the third indent of Article 4(2) of Regulation 1049/2001.

Procedure and forms of order sought

7 By application lodged at the Court Registry on 14 December 2015, the applicant claims that the Court should:

- annul the initial decision and the confirmatory decision;

- order the Commission to pay the costs.

8 The Commission contends that the Court should:

- dismiss the action as inadmissible as regards the initial decision;

- dismiss the action as unfounded as regards the confirmatory decision;

- order the applicant to pay the costs.

Law

Admissibility of the application for annulment of the initial decision

9 Without raising a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court, the Commission contends that the action is inadmissible so far as concerns the initial decision, on the ground that it is a preparatory act not liable to affect the legal position of the applicant.

10 It should be pointed out that, according to settled case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C-362/08 P, EU:C:2010:40, paragraph 51).

11 It is also apparent from settled case-law concerning the admissibility of actions for annulment that the substance of the contested acts must be examined and the intention of those who drafted them as well, in order to classify those acts. In that regard, it is in principle those measures that definitively determine the position of the Commission upon the conclusion of an administrative procedure, and are intended to have legal effects capable of affecting the interests of the applicant, are open to challenge, and not intermediate measures whose purpose is to prepare for the definitive decision, or measures that are mere confirmation of an earlier measure not challenged within the prescribed period (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C-362/08 P, EU:C:2010:40, paragraph 52).

12 With regard to Regulation No 1049/2001, it should be pointed out that it is the object of Articles 7 and 8 of that regulation, by providing for a two-stage procedure, to achieve, first, the swift and straightforward processing of applications for access to documents of the institutions concerned and, second, as a priority, an amicable settlement of disputes that may arise. For cases in which such a dispute cannot be resolved by the parties, the abovementioned Article 8(1) provides two remedies, namely, the institution of court proceedings or the lodging of a complaint with the Ombudsman (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C-362/08 P, EU:C:2010:40, paragraph 53).

13 The procedure laid down in Articles 7 and 8 of Regulation No 1049/2001, in that it provides for the making of a confirmatory application, enables in particular the institution concerned to re-examine its position before taking a definitive refusal decision which could be the subject of an action before the courts of the Union. Such a procedure makes it possible for initial applications to be dealt with more promptly and, consequently, more often than not to meet the applicant’s expectations, while also enabling the institution to adopt a detailed position before definitively refusing access to the documents sought by the applicant, in particular where the applicant repeats the request for disclosure of those documents, notwithstanding a reasoned refusal by that institution (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C-362/08 P, EU:C:2010:40, paragraph 54).

14 It follows that the response to an initial application within the meaning of Article 7(1) of Regulation No 1049/2001 is only the first position adopted which, in principle, is not actionable, since it does not produce legal effects, failing any exceptional circumstances (see, to that effect, judgments of 2 October 2014, Strack v Commission, C-127/13 P, EU:C:2014:2250, paragraph 36, and of 19 January 2010, Co-Frutta v Commission, T-355/04 and T-446/04, EU:T:2010:15, paragraph 36). The situation is different, in particular, where the response to the initial application is vitiated by a defect in that it failed to inform the applicant of its right...