Judgments nº T-344/15 of The General Court, April 05, 2017

• Resolution Date: April 05, 2017
• Issuing Organization: The General Court
• Decision Number: T-344/15

(Access to documents - Regulation (EC) No 1049/2001 - Documents sent under the procedure laid down in Directive 98/34/EC - Documents originating from a Member State - Access granted - Exception for the protection of court proceedings - Exception for the protection of the purpose of inspections, investigations or audits - Prior agreement of the Member State)

In Case T-344/15,

French Republic, represented initially by F. Alabrune, G. de Bergues, D. Colas and F. Fize, and subsequently by D. Colas and B. Fodda, and then by D. Colas, B. Fodda and E. de Moustier, acting as Agents,

applicant,

supported by

Czech Republic, represented by M. Smolek, T. Müller and J. Vláčil, acting as Agents,

intervener,

v

European Commission, represented by J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU and seeking the annulment of Commission Decision Ares (2015) 1681819 of 21 April 2015, granting to a citizen access to documents sent by the French Republic in accordance with the procedure laid down in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p.37).

THE GENERAL COURT (Third Chamber, Extended Composition)

composed of S. Papasavvas, President, I. Labucka, E. Bieliūnas (Rapporteur), I.S. Forrester and C. Iliopoulos, Judges,

Registrar: G. Predonzani, Administrator,

having regard to the written part of the procedure and further to the hearing on 14 December 2016,

gives the following

Judgment

Background to the dispute

1 On 21 January 2014, the French authorities notified the European Commission, pursuant to Article 8(1) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), of a draft law regulating the terms for the distance-selling of books and enabling the French Government to modify by order the provisions of the French Intellectual Property Code dealing with publishing contracts.

2 By letter dated 15 December 2014, the Commission received, 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), a request for access to all the documents sent or received by it in the context of handling that notification.

3 The Commission identified five documents that were the object of the request for access, namely:

- its request for additional information, dated 27 February 2014;

- the response given by the French Government to that request, dated 11 March 2014;

- the detailed opinion of the Austrian Government, dated 9 April 2014;

- its detailed opinion of 15 April 2014;

- the response given by the French Government to those two detailed opinions, dated 17 June 2014.

4 In the absence of any further communication from either the Commission or a Member State, the French Republic adopted, on 8 July 2014, loi No 2014-779 encadrant les conditions de la vente à distance des livres et habilitant le gouvernement français à modifier par ordonnance les dispositions du code de la propriété intellectuelle relatives au contrat d’édition (Law No 2014-779 regulating the terms for the distance-selling of books and enabling the French Government to modify by order the provisions of the French Intellectual Property Code dealing with publishing contracts) (JORF, 9 July 2014, p. 11363).

5 In the course of the consultation procedure laid down in Article 4(4) and (5) of Regulation No 1049/2001, the French Republic informed the Commission, by emails of 19 December 2014 and 13 and 14 January 2015, that it opposed access being given, first, to the French Government’s response of 11 March 2014 to the Commission’s request for additional information and, second, to the French Government’s response of 17 June 2014 to the detailed opinions of the Austrian Government and the Commission, referred to in the second and fifth indents of paragraph 3 above (‘the documents at issue’), on the basis of the exception provided for in Article 4(2), second indent, of Regulation No 1049/2001 concerning the protection of court proceedings. According to the French authorities, disclosure would undermine the protection of future court proceedings which might be brought under Article 258 TFEU against the French Republic for a failure to fulfil its obligations notwithstanding its compliance with the procedure laid down by Directive 98/34. According to the French authorities, there was a risk that proceedings for a failure to fulfil obligations might be brought since the Commission had adopted a detailed opinion in which it had stated that the proposed French law possibly did not comply with EU law. Concerned not to disrupt the equality of arms between it and the Commission in possible litigation, the French Republic had, therefore, asked that the confidential nature of the exchanges with the Commission be maintained.

6 By letter dated 29 January 2015, the Commission granted access to its request for additional information of 27 February 2014, to the Austrian Government’s detailed opinion of 9 April 2014 and to its detailed opinion of 15 April 2014, referred to in the first, third and fourth indents of paragraph 3 above, but refused to grant access to the disputed documents, informing the applicant for access of the French Government’s opposition and of the ground that it had advanced in support of its opposition.

7 On 11 February 2015, the applicant for access lodged a confirmatory application with the Commission in accordance with Article 7(2) of Regulation No 1049/2001.

8 By letter of 3 March 2015, the Commission asked the French Republic to reconsider its position, in particular on the basis of the judgments of 21 September 2010, Sweden and API v Commission and Commission v API (C-514/07 P, C-528/07 P and C-532/07 P, EU:C:2010:541), and of 6 July 2006, Franchet and Byk v Commission (T-391/03 and T-70/04, EU:T:2006:190) regarding the exception for the protection of court proceedings.

9 By email of 13 March 2015, the French authorities re-stated their position that no access should be granted to the documents at issue. In that regard, as well as repeating their opposition to the disclosure of the documents at issue on the basis of the exception provided for in Article 4(2), second indent, of Regulation No 1049/2001, they considered that the access to the documents at issue should also be refused on the basis of the exception laid down in Article 4(2), third indent, of that regulation, concerning the protection of the purpose of inspections, investigations and audits. According to the French authorities, all of the documents covered by the application for access fall within the context of an investigation procedure which involved the French authorities and which related to a possible breach of EU law by the French law under consideration at that time by the French Parliament. Furthermore, the French authorities stated that they had examined the possibility of granting partial access to the documents at issue, but had reached the conclusion that such access could not be granted since the exceptions covered all of the documents in their entirety.

10 By Decision Ares(2015) 1681819 of 21 April 2015 (‘the contested decision’), the Commission decided to grant access to the documents at issue to the applicant for access. In that regard, the Commission assessed the grounds for refusal relied on by the French authorities and concluded, as regards the ground based on the exception laid down in Article 4(2), second indent, of Regulation 1049/2001, that ‘the documents to which access [had been] sought [were] not closely linked to existing or reasonably foreseeable proceedings at this stage’, that ‘[it was] therefore clear that the documents in question [did] not fall within the exception relied upon by the French authorities’ and that, ‘disclosure of those documents should not be prevented by that exception’. As regards the ground for refusal based on the exception provided for in Article 4(2), third indent, of Regulation No 1049/2001, the Commission stated that ‘given that there [was] no investigation in progress, the applicability of the exception referred to above [appeared], at [that] stage, to be purely hypothetical and, consequently, an attempt to rely on it [seemed], at first sight, to be unfounded in the circumstances’.

Procedure and forms of order sought

11 By application lodged at the Court Registry on 1 July 2015, the French Republic brought the present action.

12 In the application, the French Republic requested, pursuant to Article 28(5) of the Rules of Procedure of the General Court that the case be decided by a Chamber composed of at least five Judges.

13 By separate document lodged at the Court Registry on the same day, the French Republic made an application for interim measures.

14 That application was granted by order of the President of the General Court of 1 September 2015 and the costs were reserved.

15 By separate document lodged at the Court Registry on 16 September 2015, the Commission applied for the present action to be decided under an expedited procedure in accordance with Article 152 of the Rules of Procedure.

16 By decision of 6 October 2015, the Court (Third Chamber) rejected the application for an expedited procedure.

17 By a document lodged at the Court Registry on 5 October 2015, the Czech Republic applied to intervene in the present proceedings in support of the form of order sought by the French Republic.

18 By order of 6 November 2015, the President of the Third Chamber of the General Court granted that application for leave to intervene. The Czech Republic lodged its statement in intervention and the main parties...