Judgments nº T-264/15 of The General Court, April 28, 2017

• Resolution Date: April 28, 2017
• Issuing Organization: The General Court
• Decision Number: T-264/15

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to a procedure for failure to fulfil obligations - Documents drawn up by a Member State - Request for access to documents made to the Member State - Request forwarded to the Commission - Refusal of access - Competence of the Commission - Document originating from an institution - Article 5 of Regulation (EC) No 1049/2001) In Case T-264/15,

Gameart sp. z o.o., established in Bielsko-Biała (Poland), represented by P. Hoffman, lawyer,

applicant,

v

European Commission, represented by J. Hottiaux, A. Buchet and M. Konstantinidis, acting as Agents,

defendant,

supported by

Republic of Poland, represented by B. Majczyna, M. Kamejsza and M. Pawlicka, acting as Agents,

by

European Parliament, represented by D. Warin and A. Pospíšilová Padowska, acting as Agents,

and by

Council of the European Union, represented initially by J.-B. Laignelot, K. Pleśniak and E. Rebasti, and subsequently by J.-B. Laignelot and E. Rebasti, acting as Agents,

interveners,

ACTION under Article 263 TFEU for annulment of the decision of the Commission of 18 February 2015 in so far as it refused the request for access to documents drawn up by the Republic of Poland, a request which was forwarded to it by the Republic of Poland on the basis of the second paragraph of Article 5 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,

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, J. Schwarcz (Rapporteur) and C. Iliopoulos, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 30 November 2016,

gives the following

Judgment

Background to the dispute

1 The applicant, Gameart sp. z o.o., is a business in the entertainment sector established in Poland.

2 On 10 November 2014, the applicant, on the basis of the polskie przepisy o dostępie do informacji publicznej (Polish provisions regarding access to public information), filed a request with the Polish Ministry of Foreign Affairs (‘the MFA’) for access to documents relating to procedures conducted by the European Commission concerning the infringement of EU law by the Polish law of 19 November 2009 on gaming.

3 In particular, the applicant requested access to copies of the letters sent by the Commission to the Republic of Poland in connection with those procedures. It also requested access to copies, in the MFA’s possession, of the letters sent by the Republic of Poland to the Commission concerning those procedures (‘the documents at issue’).

4 On 18 November 2014, the MFA forwarded the applicant’s request by email to the Commission pursuant to the second paragraph of Article 5 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).

5 On 19 November 2014, the MFA informed the applicant that its request concerned documents of the EU institutions, that the request was subject to the provisions of Regulation No 1049/2001 and that, consequently, pursuant to the second paragraph of Article 5 of that regulation, it had forwarded the request to the Commission for examination.

6 On 15 December 2014, the Commission refused access to the requested documents, relying on the exception in the third indent of Article 4(2) of Regulation No 1049/2001, namely the protection of the purpose of inspections, investigations and audits, and on the fact that the procedure regarding the infringement of EU law by the Republic of Poland was still ongoing.

7 On 2 January 2015, the applicant sent the Commission a confirmatory application for access to the documents, pursuant to Article 7(2) of Regulation No 1049/2001. In its application, it maintained that the Commission did not have competence to adopt a decision with regard to its request for access to the documents at issue, since they were not within the scope of Regulation No 1049/2001. In particular, the applicant maintained that the second paragraph of Article 5 of the regulation could not apply to those documents, since that provision concerns only documents originating from EU institutions.

8 By decision of 18 February 2015 (‘the contested decision’), the Commission rejected the confirmatory application and refused access to the documents at issue, relying again on the exception in the third indent of Article 4(2) of Regulation No 1049/2001 and on the fact that the procedure regarding the infringement of EU law by the Republic of Poland was still ongoing.

Procedure and forms of order sought

9 By application lodged at the Court Registry on 8 May 2015, the applicant brought the present action.

10 By documents lodged on 8, 11 and 18 September 2015, respectively, the Republic of Poland, the Council of the European Union and the European Parliament sought leave to intervene in the present case in support of the form of order sought by the Commission.

11 By orders of 19 October 2015, the President of the Fifth Chamber of the General Court granted leave to intervene.

12 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was accordingly allocated.

13 The applicant claims that the Court should:

- annul the contested decision in so far as it confirms the refusal to grant access to the documents at issue;

- in the alternative, find that the second paragraph of Article 5 of Regulation No 1049/2001 is inapplicable in the present case, pursuant to Article 277 TFEU;

- order the Commission to pay the costs.

14 The Commission, supported by the Republic of Poland, the Council and the Parliament, contends that the Court...