Judgments nº T-446/04 of The General Court, January 19, 2010

• Resolution Date: January 19, 2010
• Issuing Organization: The General Court
• Decision Number: T-446/04

In Joined Cases T‑355/04 and T‑446/04,

Co-Frutta Soc. coop., established in Padua (Italy), represented by W. Viscardini and G. Donà, lawyers,

applicant,

v

European Commission, represented initially by L. Visaggio and P. Aalto, and subsequently by P. Aalto and L. Prete, acting as Agents,

defendant,

ACTION in Case T‑355/04 for annulment of (i) the decision of the Commission of 28 April 2004 rejecting an initial application for access to information concerning operators registered in the Community as importers of bananas and (ii) the implied decision of the Commission rejecting the confirmatory access application and action in Case T‑446/04 for annulment of the express decision of the Commission of 10 August 2004 refusing access to the information,

THE GENERAL COURT (Second Chamber),

composed of I. Pelikánová, President, K. Jürimäe and S. Soldevila Fragoso (Rapporteur), Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 2 December 2008,

gives the following

Judgment

Legal context

1. Community legislation on access to documents

   1 Under Article 255(1) EC:

   ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.’

   2 Those principles and those conditions are defined in 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).

   3 Article 2(3) of Regulation No 1049/2001 provides:

   ‘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.’

   4 Article 4 of Regulation No 1049/2001, concerning exceptions to the right to access, provides:

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

   – commercial interests of a natural or legal person, including intellectual property,

   …

   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 7 of Regulation No 1049/2001, concerning the processing of initial applications, provides:

   ‘1. An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.

2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.

3. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.’

   6 Article 8 of Regulation No 1049/2001, concerning the processing of confirmatory applications, states:

   ‘1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 [EC] and 195 [EC], respectively.

2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time‑limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

3. Failure by the institution to reply within the prescribed time‑limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the EC Treaty.’

   7 Pursuant to Regulation No 1049/2001, the Commission adopted Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure (OJ 2001 L 345, p. 94), the Annex to which lays down the provisions governing the right of access to documents held by the Commission, which reproduce in essence the above provisions of Regulation No 1049/2001.

2. Community legislation on the importation of bananas

   8 Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1) introduced, from 1 July 1993, a common system of imports from third countries.

   9 In the context of that system – as implemented, from 1 January 1999, by Commission Regulation (EC) No 2362/98 of 28 October 1998 laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community (OJ 1998 L 293, p. 32) – the competent authorities of the Member States are required to forward to the Commission each year the lists of the operators registered with them, together with information relating to the quantities marketed by each of those operators during a reference period, to the volumes covered by the applications made by the operators in the current year and to the quantities actually marketed, as well as the serial numbers of the import licences used (see, in particular, Article 4 of Commission Regulation (EEC) No 1442/93 of 10 June 1993 laying down detailed rules for the application of the arrangements for importing bananas into the Community (OJ 1993 L 142, p. 6) and Articles 6(2) and 28(2) of Regulation No 2362/98) and certain quarterly statistical and economic information relating, inter alia, to the import licences (see, in particular, Article 21 of Regulation No 1442/93 and Article 27 of Regulation No 2362/98).

   10 Each traditional operator has access to tariff quotas up to the individual reference quantities calculated by the competent authorities of the Member States on the basis of actual imports during the given period. Communication of the lists in question enables the Commission to check the information available to the competent national authorities and, in so far as required, to forward the lists to the other Member States with a view to facilitating the detection or prevention of false claims by operators. In accordance with Article 4 of Regulation No 1442/93 and Articles 6 and 28 of Regulation No 2362/98, the Commission must, where appropriate, set a single adjustment coefficient on the basis of the information provided, to be applied by the Member States to the operators’ reference quantities.

   Background to the dispute

   11 The applicant, Co‑Frutta Soc. coop., is an Italian undertaking engaged in the ripening of bananas. Through the Italian press, it learned of allegedly fraudulent imports of bananas into the European Community between March 1998 and June 2000 at a reduced tariff on the basis of false import licences.

   12 The applicant considers itself affected by those imports because of serious price distortions caused by the placing of additional quantities on the Community market, leading the tariff quota to be exceeded, and claims that the loss suffered will be even greater if it transpires that the imports were made not with false licences but with licences which had been properly issued, but on the basis of false or erroneous reference quantities, which would mean that its own reference quantity had been reduced.

   13 By the judgment in Case T‑47/01 Co‑Frutta v Commission [2003] ECR II‑4441 (‘the judgment in Co‑Frutta I’), the Court dismissed the action which the applicant brought against an initial decision of the Commission partially refusing it access to certain documents concerning the Community rules governing the importation of bananas.

   14 The applicant applied – by letter of 20 January 2004 to the Commission’s Directorate-General for Agriculture (‘DG Agriculture’), received on 21 January 2004 – for access to the list of traditional operators registered during the years 1998, 1999 and 2000, specifying:

   (a) the quantity of bananas imported by each operator during the period from 1994 to 1996;

   (b) the provisional reference quantity attributed to each operator for the years 1998, 1999...