Judgments nº T-653/16 of Tribunal General de la Unión Europea, May 03, 2018

• Resolution Date: May 03, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-653/16

(Access to documents - Regulation (EC) No 1049/2001 - Documents held by the Commission - Documents originating from a Member State - Documents exchanged pursuant to the control system for ensuring compliance with the rules of the common fisheries policy - Article 113 of Regulation (EC) No 1224/2009 - Public access following a request made by a non-governmental organisation - Action for annulment - Admissibility - Obligation to state reasons - Sincere cooperation - Choice of legal basis)

In Case T-653/16,

Republic of Malta, represented by A. Buhagiar, acting as Agent,

applicant,

v

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

defendant,

ACTION under Article 263 TFEU for annulment of the decision of the Secretary-General of the Commission of 13 July 2016 on a confirmatory application by Greenpeace for access to documents relating to an allegedly irregular shipment of live bluefin tuna from Tunisia to a fish farm located in Malta, in so far as it grants Greenpeace access to documents originating from the Maltese authorities,

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni, President, K. Kowalik-Bańczyk (Rapporteur) and C. Mac Eochaidh, Judges,

Registrar: E. Coulon,

gives the following

Judgment

1. Background to the dispute

   1 In March 2010, the environmental organisation, Greenpeace, sent the European Commission information concerning an allegedly irregular shipment of live bluefin tuna from Tunisia to a fish farm located in Malta.

   2 On the basis of that information, by Commission Decision C(2010) 7791 final of 12 November 2010, the Commission informed the Republic of Malta of identified irregularities in the field of controls of bluefin tuna activities and requested it to open an administrative inquiry based on Article 102(2) of Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009 L 343, p. 1).

   3 Following the administrative inquiry carried out by the Republic of Malta (‘the administrative inquiry’), the Commission established with that Member State, by Commission Decision C(2011) 6257 final of 12 September 2011 pursuant to Article 102(4) of Regulation No 1224/2009, an action plan to overcome shortcomings in the Maltese fisheries control system (‘action plan’). According to the Commission, the Republic of Malta had successfully implemented that action plan as of February 2013.

   4 Meanwhile, by letter of 14 April 2010, Greenpeace requested that, 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 Commission grant it access to the documents relating to the shipment of bluefin tuna referred to in paragraph 1 above, including the documents exchanged between the Republic of Malta and the Commission in that regard (‘the application of 14 April 2010’). The Commission ultimately refused to grant that access in a confirmatory decision of 3 March 2011. Greenpeace then lodged a complaint with the European Ombudsman on 23 May 2012.

   5 By letter of 19 April 2012, Greenpeace requested that the Commission grant it access to various documents postdating the application of 14 April 2010 and, in particular, to the correspondence between the Republic of Malta and the Commission drawn up or received by the Commission after 3 March 2011 (‘the application of 19 April 2012’). The Commission ultimately refused to grant Greenpeace access to those documents in a confirmatory decision of 25 September 2012. Greenpeace then lodged a further complaint with the European Ombudsman on 26 April 2013.

   6 By recommendation of 29 June 2015, the Ombudsman concluded that the Commission had not sufficiently justified its refusal to grant access to the documents covered by the applications of 14 April 2010 and 19 April 2012 and recommended that the Commission should grant access to the documents in question or provide valid reasons for not doing so.

   7 By letter of 29 July 2015 (‘the initial application’), Greenpeace restated its applications of 14 April 2010 and 19 April 2012 in the light of the Ombudsman’s recommendations for access to be granted to all the documents covered by those two applications as well as those covered by the two complaints investigated by the Ombudsman, namely:

   ‘- any and all written documents relating to the transfer of ... bluefin tuna from Tunisia to Malta and subsequent caging and/or slaughtering of tuna in Malta on 20, 21 and 22 March [2010], including, for instance, copies of the catch and transfer declarations, observer reports, etc.;

   - any and all video material documenting the transport, caging and, if applicable, slaughtering of that tuna ...;

   - any and all written communication on the above matter between the ... Commission and the ... [Maltese Government] ...;

   - Commission Decision C(2010) 7791 [final] of 12 November 2010 ..., including any annexes thereto;

   - the report drawn up by the Maltese authorities in response, as required by Article 102(3) of ... Regulation [No 1224/2009];

   - any documents concerning the Commission’s evaluation of the report mentioned in the previous [indent];

   - the action plan ...; and

   - any correspondence between [the Republic of] Malta and the Commission regarding identified irregularities in the field of controls of bluefin tuna activities in Malta drawn up or received after 3 March 2011.’

   8 By email of 28 September 2015, the Commission informed the Republic of Malta of the initial application and consulted it in order for it to let the Commission know, within five working days, whether it opposed the disclosure of the documents originating from the Republic of Malta identified by the Commission at that stage.

   9 On 30 September 2015, the Republic of Malta sought an extension of the deadline for replying.

   10 On 5 November 2015, the Commission extended the Republic of Malta’s time limit for replying by 15 working days. At the same time, the Commission informed the Republic of Malta that it had decided, first, to grant Greenpeace access to the documents originating from the Commission and, second, to continue the ongoing consultation with the Republic of Malta in respect of the documents originating from the Maltese authorities.

   11 By letter of 30 November 2015, the Republic of Malta sent its observations to the Commission, setting out the reasons why it considered that the documents both from the Republic of Malta and the Commission could not be disclosed.

   12 On 23 December 2015, the Director-General of the Directorate-General (DG) for Maritime Affairs and Fisheries at the Commission refused to grant Greenpeace access to the documents originating from the Republic of Malta identified at that time on the ground that the Republic of Malta was opposed to the disclosure of all documents originating from it (‘the initial decision’).

   13 On 20 January 2016, Greenpeace lodged a confirmatory application (‘the confirmatory application’).

   14 By letter of 13 April 2016, the Commission informed the Republic of Malta of the confirmatory application. In that letter, the Commission stated that, following a review of the scope of the initial application, it had identified further documents covered by the initial application originating both from its services and the Maltese authorities. In the same letter, the Commission therefore consulted the Republic of Malta in order for it to let the Commission know, within five working days, whether it still opposed the full or partial disclosure of the documents originating from the Republic of Malta, including the newly identified documents.

   15 On 18 April 2016, the Republic of Malta sought an extension of the deadline for replying.

   16 On 27 April 2016, the Commission extended the Republic of Malta’s time limit for replying by 10 working days.

   17 On 3 May 2016, the Republic of Malta informed the Commission that it objected to the disclosure of all the documents originating from the Maltese authorities, including those identified during the examination of the confirmatory application.

   18 On 19 May 2016, the Commission requested the Republic of Malta to indicate, within 10 working days, the reasons for and the extent of its objection to disclosure of the documents in question.

   19 On 27 May 2016, the Republic of Malta replied that it was upholding in full the position it had expressed in its letter of 3 May 2016, which it considered to be sufficiently precise.

   20 On 13 July 2016, the Secretary-General of the Commission adopted a decision on Greenpeace’s confirmatory application (‘the contested decision’). By letter of the same day, the Commission informed the Republic of Malta of the adoption of the contested decision.

   21 By the contested decision, the Commission granted Greenpeace access, in particular, in redacted form eliminating any personal data, to various documents originating both from its services and the Maltese authorities. As regards the documents originating from the Commission, the documents which were decided to be disclosed were either identified during the examination of the initial application, but mistakenly not then sent to Greenpeace (documents listed in Annex F to the contested decision), or were identified only during the examination of the confirmatory application (documents listed in Annex D to the contested decision). As regards the documents originating from the Republic of Malta, the documents which were decided to be disclosed were both identified during the examination...