Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Third Chamber)

2 July 2015 (*)

(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to competition EPSO/AD/230-231/12 — Implied refusal to grant access — Refusal to grant access — Request for modification of the form of order sought submitted in the reply — Time-limit — Withdrawal of the implied decision — No need to adjudicate — Concept of a document — Extraction and organisation of information contained in electronic databases)

In Case T‑214/13,

Rainer Typke, residing in Hasbergen (Germany), represented by B. Cortese and A. Salerno, lawyers,

applicant,

v

European Commission, represented by B. Eggers and F. Clotuche-Duvieusart, acting as Agents,

defendant,

APPLICATION for annulment, first, of the decision of the Secretariat-General of the Commission of 5 February 2013 refusing the applicant’s initial application for access to documents relating to the preselection tests for the open competition EPSO/AD/230-231/12 (AD 5-AD 7) (Gestdem 2012/3258) and, secondly, of the implied decision of the Secretariat-General of the Commission, deemed to have been taken on 13 March 2013, refusing the applicant’s second application for access to documents relating to those tests (Gestdem 2013/0068).

THE GENERAL COURT (Third Chamber),

composed of S. Papasavvas, President, N.J. Forwood (Rapporteur) and E. Bieliūnas, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 4 February 2015,

gives the following

Judgment

 Background to the dispute

1        The applicant, Mr Rainer Typke, is a member of the staff of the European Commission and took part in the admission tests for open competitions EPSO/AD/230/12 for the recruitment of grade AD 5 officials and EPSO/AD/231/12 for the recruitment of grade AD 7 officials.

2        After having been informed of his results on 28 June 2012, the applicant made an initial application to the European Personnel Selection Office (EPSO), 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), for, in essence, access to a ‘table’ containing a series of anonymised data on the tests in question, which had been taken by approximately 45 000 candidates (procedure Gestdem 2012/3258).

3        The applicant indicates that he took that initiative with a view to allaying his suspicions that those tests had not been organised in a manner consistent with the principle of equal treatment of candidates, owing, in particular, to the negative impact on certain language groups of certain translation errors vitiating those tests.

4        According to that initial application, the table was to contain the following information:

–        an identifier for each candidate which was not to give any indication of the identity of the candidate but to relate the candidate to the questions which he had to answer;

–        an identifier for each question asked, without, however, revealing the content of the question;

–        for each question asked, the type of question, namely a verbal reasoning, abstract reasoning, numerical reasoning or situational judgement question;

–        the language in which each question was presented to each candidate;

–        an indication of any neutralisation of particular questions;

–        an identifier for the expected answer which, without revealing the content of the question, was to be the same for each question/answer pair; the applicant specified in this regard that, if the answer options were not presented in the same order to all the candidates, it was to be ensured that the same identifier was used for each expected answer; he also stated that, for situational judgement questions, the entire expected answer was to be indicated, that is to say the best and the worst options;

–        the answer given by each candidate to each question, it being understood, however, that the applicant did not seek to ascertain the content of the answers, merely to identify correct and incorrect answers from the candidates; the applicant specified in this regard that a separate identifier was to be used if a candidate had not answered a question, and that the complete answer was to be indicated for situational judgement questions;

–        lastly, the time spent by each candidate on answering each question.

5        By decision of 9 August 2012, EPSO refused that initial application. Whilst stating that it was indeed in possession of the information referred to in that application, which was stored in various databases, EPSO indicated, in essence, that the table requested by the applicant did not exist.

6        On 21 August 2012, the applicant filed a confirmatory application for access with the Secretariat-General of the Commission (‘the Secretariat-General’), under Article 7(2) of Regulation No 1049/2001. On that occasion, the applicant added to the list of information requested the level of difficulty of each question set for each candidate. He also stated that his request was not intended to require EPSO to create a new document by merging information from existing documents, but to give him access to a series of documents held by EPSO in electronic form. Under the terms of the application, it would suffice to provide the applicant with a version of those documents that excluded any information covered by one of the exceptions to the right of access laid down in Article 4 of Regulation No 1049/2001.

7        On 30 August 2012, the Secretariat-General sent the applicant an initial response to his confirmatory application. After having rejected that confirmatory application as inadmissible in so far as it widened the scope of the initial application in relation to the level of difficulty of the questions set for each of the candidates, the Secretariat-General, in essence, confirmed EPSO’s view that the table requested by the applicant did not exist and, moreover, that Regulation No 1049/2001 was not intended to oblige the Commission to perform IT operations in order to extract information stored in various databases. The letter did not contain any indication of the remedies available, as laid down in the final sentence of Article 8(1) of Regulation No 1049/2001.

8        On 17 September 2012, the applicant asked the Secretariat-General to re-examine his confirmatory application for a decision and to inform him of possible recourse against a refusal to grant access.

9        On 23 October 2012, the Secretariat-General informed the applicant that it had not rejected his confirmatory application in its letter of 30 August 2012 but that it had only stated that EPSO had not refused to give him access to existing documents in its possession. It also stated that the confirmatory application was being re-examined in the light of further observations made by the applicant.

10      In the absence of a definitive response to his confirmatory application in procedure Gestdem 2012/3258, the applicant submitted a new application for access to EPSO on 28 December 2012 (procedure Gestdem 2013/0068). That second application differed from the first in that the applicant did not seek to obtain a single table combining all the information requested but rather parts of existing documents in electronic format. By that second application, the applicant essentially sought to obtain the same information as that covered by his initial application, as well as an indication of the level of difficulty of each question set for each candidate.

11      In the absence of an EPSO decision on that second application for access, upon expiry of the period of 15 working days from registration of that application, the applicant filed a confirmatory application with the Secretariat-General on 30 January 2013, as provided for in Article 7(4) of Regulation No 1049/2001.

12      On 5 February 2013, EPSO explicitly refused the application for access in procedure Gestdem 2013/0068. On the following day, the applicant informed the Secretariat-General that he was maintaining, in the same terms, his confirmatory application in that procedure, filed on 30 January 2013.

13      By decision of 5 February 2013 (‘the first contested decision’), the Secretariat-General refused the confirmatory application in procedure Gestdem 2012/3258. The Secretariat-General argued first of all that the confirmatory application was inadmissible with regard to the indication of the level of difficulty of each question set for each candidate, since that aspect was not covered by the initial application. The Secretariat-General went on to confirm, in essence, EPSO’s view that the application was in fact intended to procure access to a document that did not exist, the compilation of the requested table involving not only the extraction of information on tens of thousands of relevant tests from different databases but also relating that information to other databases, such as the general database of questions. Even if the application for access could be interpreted as being intended to obtain individual statements of results achieved by each of the candidates in anonymised form, such a request would be disproportionate given the administrative workload it would entail.

14      On 20 February 2013, the Secretariat-General informed the applicant that it was not yet in a position to reply to his confirmatory application in procedure Gestdem 2013/0068, and that it was extending the time-limit for a response by 15 days, in accordance with Article 8(2) of Regulation No 1049/2001.

15      By letter of 13 March 2013, the Secretariat-General informed the applicant that it was still not in a position to reply to the confirmatory application in procedure Gestdem 2013/0068. On this occasion it expressed doubts as to whether the application concerned documents in an existing version and format within the meaning of Article 10(3) of Regulation No 1049/2001.

16      In reliance on the rule laid down in Article 8(3) of Regulation No 1049/2001, the applicant interpreted that failure to give a decision as a negative response to his confirmatory application in procedure Gestdem 2013/0068 (‘the second contested decision’).

 Procedure and forms of order sought

17      The applicant brought the present action by application lodged at the Court Registry on 15 April 2013.

18      Following a change in the composition of the Chambers of the Court at the beginning of the new judicial year, the Judge-Rapporteur was assigned to the Third Chamber, to which this case was therefore allocated.

19      On a proposal from the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the General Court of 2 May 1991, requested the Commission to lodge certain documents and put questions to the applicant and to the Commission in writing, inviting them to answer those questions at the hearing.

20      The parties presented oral argument and answered the written and oral questions put by the Court at the hearing on 4 February 2015.

21      The applicant claims that the Court should:

–        annul the first contested decision;

–        annul the second contested decision;

–        order the Commission to pay the costs.

22      Following the adoption by the Secretariat-General of an express refusal decision in procedure Gestdem 2013/0068 on 27 May 2013, the applicant, in his reply, sought leave to modify his claims with a view to seeking annulment of the latter decision.

23      The Commission contends that the Court should:

–        declare that, in view of the adoption of the express refusal decision in procedure Gestdem 2013/0068 on 27 May 2013, there is no need to adjudicate on the action in so far as it relates to annulment of the second contested decision;

–        dismiss the action in so far as it relates to the first contested decision;

–        order the applicant to pay the costs.

 Law

24      Before considering the substance of the application, the Court must examine the Commission’s arguments contesting the admissibility of the request to modify the form of order sought, submitted by the applicant in his reply, and of the claim for annulment of the second contested decision.

 Admissibility

 Admissibility of the claim for annulment of the express decision in procedure Gestdem 2013/0068

25      In the reply, lodged at the Court Registry on 15 October 2013, the applicant sought leave to modify the form of order sought, so as to obtain annulment of the Commission’s decision of 27 May 2013 expressly refusing his application for access in procedure Gestdem 2013/0068.

26      The Commission contends that that request for modification is inadmissible, describing it as being time-barred in view of the time-limit for bringing an action laid down in the sixth paragraph of Article 263 TFEU.

27      It should be borne in mind in this regard that, according to well-established case-law, when a decision or a regulation of direct and individual concern to an individual is replaced, during the proceedings, by another measure with the same subject-matter, this is to be considered a new factor allowing the applicant to adapt his claims and pleas in law. It would be contrary to the principle of due administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the institution in question were able, in order to counter criticisms of a measure, contained in an application to the Courts of the European Union, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against that measure (see judgments of 12 December 2006 in Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, ECR, EU:T:2006:384, paragraph 28 and the case-law cited, and 6 September 2013 in Iranian Offshore Engineering & Construction v Council, T‑110/12, ECR (Extracts), EU:T:2013:411, paragraph 16).

28      However, in order to be admissible, a request to amend the form of order sought must be lodged within the time-limit for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU. According to settled case-law, that time-limit is mandatory and must be applied by the Courts of the European Union in such a way as to safeguard legal certainty and equality of persons before the law (see, to that effect, judgments of 18 January 2007 in PKK and KNK v Council, C‑229/05 P, ECR, EU:C:2007:32, paragraph 101, and Iranian Offshore Engineering & Construction v Council, cited in paragraph 27 above, EU:T:2013:411, paragraph 17).

29      As regards the calculation of the time-limit for bringing an action, it should be borne in mind that, under the sixth paragraph of Article 263 TFEU, an action for annulment must be brought within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. That period must, in accordance with the provisions of Article 102 of the Rules of Procedure of 2 May 1991, be extended on account of distance by a single period of 10 days.

30      In the present case, the express decision refusing access in procedure Gestdem 2013/0068, adopted on 27 May 2013, was notified to the applicant that same day by e-mail. Accordingly, the time-limit for bringing an action for annulment of that decision expired, in the applicant’s case, on 6 August 2013.

31      Since the reply containing a request to modify the form of order sought was lodged on 15 October 2013, it must be concluded that that request for modification is out of time and, therefore, the claim for annulment of the express decision refusing access in procedure Gestdem 2013/0068 must be dismissed as inadmissible.

 Admissibility of the claim for annulment of the second contested decision

32      In those circumstances, it is necessary to assess whether the applicant retains any interest in procuring the annulment of the second contested decision, which was formed upon the expiry of the period of 15 working days following the extension of the initial time-limit for responding to the confirmatory application in procedure Gestdem 2013/0068. The Commission maintains that that interest disappeared once it withdrew that implied decision on adopting the decision of 27 May 2013.

33      It should be borne in mind in that regard that, according to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the contested measure being annulled (see judgment of 19 January 2010 in Co-Frutta v Commission, T‑355/04 and T‑446/04, ECR, EU:T:2010:15, paragraph 40 and the case-law cited).

34      The applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist not only at the stage of lodging the action but must also continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be likely, if successful, to procure an advantage for the party bringing it (see Co-Frutta v Commission, cited in paragraph 33 above, EU:T:2010:15, paragraph 43 and the case-law cited).

35      If the applicant’s interest in bringing proceedings disappears in the course of the proceedings, a decision of the Court on the merits cannot bring him any benefit (see Co-Frutta v Commission, cited in paragraph 33 above, EU:T:2010:15, paragraph 44 and the case-law cited).

36      Furthermore, where an implied decision refusing access has been withdrawn by the effect of a decision taken subsequently by the Commission, there is no longer any need to adjudicate on the action in so far as it is directed against that implied decision (see, to that effect, judgment of 2 October 2014 in Strack v Commission, C‑127/13 P, ECR, EU:C:2014:2250, paragraph 89).

37      In the present case, as regards the application for annulment of the second contested decision, it must be held that, by adopting the express decision of 27 May 2013 in the same procedure, the Commission effectively withdrew that implied decision.

38      It follows from this that there is no longer any need to adjudicate on the action for annulment in so far as it is directed against the second contested decision.

 Substance

39      In view of the interim conclusion set out in paragraph 38 above, it is necessary to rule only on the claim for annulment of the first contested decision, by which the Secretariat-General refused the confirmatory application made by the applicant in procedure Gestdem 2012/3258. The applicant relies, in that regard, on a single plea in law, alleging infringement of Regulation No 1049/2001. In so far as it is directed against the first contested decision, that plea is subdivided into three parts. The second and third parts are, by their nature, ancillary to the first, which concerns the question whether the subject of the application for access at issue falls within the scope of Regulation No 1049/2001.

40      The application also contains a fourth part, by which the applicant maintains that access to the information requested as regards the neutralisation of certain questions and the level of difficulty of all the questions set in the admission tests at issue is unlikely to jeopardise the confidentiality of the proceedings of the selection board or its decision-making process. The applicant explained, however, in paragraph 34 of the reply, that that fourth part was directed ‘against the refusal decision in the second access procedure’. Since there is no longer any need to adjudicate on the claim for annulment of that decision, consideration of that fourth part of the plea is necessarily superfluous.

41      By the first part of his single plea, the applicant submits, in essence, that the Secretariat-General erred in concluding that his applications for access did not concern an ‘existing document’ for the purposes of Regulation No 1049/2001, and entailed the creation of a new document or the creation of new data.

42      The applicant states in that regard that EPSO had acknowledged that it was in possession of the data requested, the Secretariat-General having declared that the data were stored in existing databases. That would necessarily imply, according to the applicant, that EPSO was in possession of one or more documents containing the data in question.

43      Furthermore, the applicant maintains that, according to the case-law, the definition of ‘document’ which is central to Regulation No 1049/2001 may be applied without any difficulty to data contained in a database, Article 3(a) of that regulation stating as it does that that concept covers any content whatever its medium. The fact that an application for access may entail a substantial amount of work for the institution concerned is, he submits, irrelevant in that regard.

44      The applicant submits, moreover, that the position of the Secretariat-General — that anonymising the data requested would amount to the creation of a new document — misinterprets the rule laid down in Article 4(6) of Regulation No 1049/2001, according to which partial access must be granted if only parts of a document are covered by one of the exceptions set out in that article. He maintains that his application for access could be dealt with favourably by selecting a series of data stored in EPSO’s databases, care being taken to exclude personal data relating to the other candidates who took the preselection tests concerned.

45      The applicant also takes issue with the argument of the Secretariat-General that the data requested could not be retrieved from a single database, since they are stored in a number of separate files. Thus, the individual statements sent to candidates to inform them of their test results, and EPSO’s practice of providing some of its contractors with statistical data relating to the test results, show that the operations which access to the information requested in the present case would necessitate are not unusual or abnormal for EPSO.

46      The applicant submits that it is necessary to take into account the fact that all the information in question is interlinked by a ‘relational’ database (Oracle) from which the desired information could readily be selected, particularly as the files in which the data relating to individual tests are stored contain a ‘strict markup syntax’, and therefore the results obtained by each candidate can be treated in a uniform manner.

47      The Commission contests those arguments on the ground that the data requested by the applicant are not stored in one specific database from which they could easily be retrieved by means of a normal or routine search. The Commission states that it has a Talent database containing all the data concerning the candidates and the test results, and thus all the information necessary in order to respond to the applicant’s application for access, except for data concerning the difficulty of the questions, which are stored in a questions database (‘the item bank’) managed by an external contractor. The Talent database is accessible through a number of Structured Query Language queries (‘SQL queries’) or pre-programmed instructions enabling fast handling of data for analysis, statistics, calculations and extraction according to predefined templates. However, the Commission’s pre-programmed SQL queries do not include those that would enable it to extract the combination of data requested by the applicant, according to the scheme outlined in his application for access.

48      Thus, according to the Commission, an extraction such as that requested by the applicant would require the development of new SQL queries and instructions for searches and data handling which the Commission does not have. In order to satisfy the applicant, such search statements would have to make it possible, first, to identify the codes of each of the questions set for each candidate, as the questions are not the same for all candidates; secondly, to link each question to its level of difficulty, as shown in a separate database (the item bank); thirdly, to aggregate the different files; and, fourthly, to anonymise candidates’ identifiers using a new identifier enabling the candidate to be linked to the questions set for him. The information obtained would then have to be verified. Such a process would necessarily, according to the Commission, entail the creation of a new document.

49      Any ‘manual’ handling of the application for access, ensuring that each individual statement of results relating to each candidate satisfies the criteria specified in the application for access, would be virtually impossible for EPSO to complete without its work being paralysed.

50      In that regard, it must be stated, first of all, that the excessive burden of work that the application for access at issue might entail for the administration, and to which the second part of the plea relates, but which was also invoked by the Commission in response to the first part of the plea, is in itself irrelevant for the purpose of assessing whether that application does indeed relate to access to one or more documents within the meaning of Article 3(a) of Regulation No 1049/2001.

51      It is evident from the judgment of 13 April 2005 in Verein für Konsumenteninformation v Commission (T‑2/03, ECR, EU:T:2005:125, paragraphs 101 and 102) that, in the context of an application for access made under Regulation No 1049/2001, classification as a document is not linked to the considerable burden of work that such an application might entail for the administration concerned. Thus, even where such an application is likely to paralyse the proper working of the administration, that does not make that application inadmissible. The Court found that, in such exceptional circumstances, the institution’s right to seek a ‘fair solution’ together with the applicant, pursuant to Article 6(3) of Regulation No 1049/2001, reflected the possibility of account being taken, albeit in a particularly limited way, of the need to reconcile the interests of the applicant with those of good administration (judgment of 10 September 2008 in Williams v Commission, T‑42/05, EU:T:2008:325, paragraph 85).

52      Next, it must be noted that, under Article 3(a) of Regulation No 1049/2001, a document, for the purposes of that regulation, means ‘any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility’, the institution in question being the recipient of the application for access.

53      Notwithstanding that broad definition, which implies in particular that there is no limitation as to the medium of the content in question, it is necessary, according to well-established case-law, to maintain a distinction between the concept of a document and that of information, for the purposes of applying Regulation No 1049/2001.

54      Information may be distinguished from a document, in particular, in so far as it is defined as a data element that may appear in one or more documents. In that respect, since none of the provisions of Regulation No 1049/2001 deals with the right of access to information as such, it cannot be inferred that the public’s right of access to a Commission document, which arises under Article 2(1) of that regulation, implies a duty on the part of the Commission to reply to any request for information from an individual (see, by analogy, order of 27 October 1999 in Meyer v Commission, T‑106/99, ECR, EU:T:1999:272, paragraphs 35 and 36, and judgment of 25 April 2007 in WWF European Policy Programme v Council, T‑264/04, ECR, EU:T:2007:114, paragraph 76).

55      Accordingly, whilst a database, by its very nature, offers significant scope for partial access focusing exclusively on the data likely to be of interest to the applicant, account must also be taken of the fact that, in general terms, according to the case-law, the right of access to documents held by the institutions within the meaning of Article 2(3) of Regulation No 1049/2001 applies only to existing documents in the possession of the institution concerned (Strack v Commission, cited in paragraph 36 above, EU:C:2014:2250, paragraph 38). An application for access that would require the Commission to create a new document, even if that document were based on information already appearing in existing documents held by it, is not, therefore, an application for partial access and does not come within the parameters of Regulation No 1049/2001 (see, to that effect and by analogy, judgment of 26 October 2011 in Dufour v ECB, T‑436/09, ECR, EU:T:2011:634, paragraph 149). That conclusion is implicitly confirmed by the rule in Article 10(3) of that regulation, according to which documents to which access is granted ‘shall be supplied in an existing version and format (including electronically or in an alternative format such as Braille, large print or tape) with full regard to the applicant’s preference’.

56      That consideration, when applied to a case involving databases, means that, in the event of an application for access designed to have the Commission carry out a search of one or more of its databases using search criteria specified by the applicant, the Commission is obliged, subject to the possible application of Article 4 of Regulation No 1049/2001, to accede to that request, if the requisite search can be carried out using the search tools which it has available for the database in question (see, by analogy, Dufour v ECB, cited in paragraph 55 above, EU:T:2011:634, paragraph 150).

57      It may be presumed that, because of the complex relationships within a database which link each data item to a number of other data items, it is possible for the entirety of the data contained in the database to be presented in a variety of different ways. Likewise, it is possible to select some of the data included in such a presentation and to blank out the rest (see, to that effect and by analogy, Dufour v ECB, cited in paragraph 55 above, EU:T:2011:634, paragraph 151).

58      However, it is not permissible to compel the Commission, in the context of an application for access to documents made under Regulation No 1049/2001, to communicate to the applicant part or all of the data contained in one of its databases — or in several of them — organised according to a classification scheme not supported by that database. Such an application would require the creation of a new document and would therefore not come within the parameters of Regulation No 1049/2001. What is sought by an application of that kind is not partial access to a document containing data processed according to a classification scheme that already exists and that can therefore be operated using the tools currently at the Commission’s disposal for the database(s) concerned, but the creation of a document containing data that has been processed and interlinked in accordance with a new classification scheme that cannot be operated using those tools, and thus of a new document, within the meaning of Article 3(a) of that regulation as interpreted by the case-law (see, by analogy, Dufour v ECB, cited in paragraph 55 above, EU:T:2011:634, paragraph 152).

59      It follows that, as regards databases, anything that can be extracted from them by means of a normal or routine search may be the subject of an application for access made pursuant to Regulation No 1049/2001, (see, by analogy, Dufour v ECB, cited in paragraph 55 above, EU:T:2011:634, paragraph 153).

60      In the present case, while the Court notes a certain confusion regarding the number, names and precise content of the various databases concerned, it can nevertheless be stated that it is common ground in this instance that the raw data in relation to the preselection tests to which the applicant’s application for access relates are held by the Commission. The Commission stated in that regard — and there appears to be nothing on the file to cast doubt on that assertion — that the data are stored in the Talent database referred to in paragraph 47 above.

61      However, the applicant did not apply, as such, for access to the whole of that database or to part of the raw data contained within it. The subject of his application is different, since the applicant seeks thereby to obtain, in essence, a set of information relating to the relevant preselection tests, but selected in accordance with criteria and in a format specified by the applicant himself in his application for access.

62      Selection of the information sought by the applicant thus involves a number of separate operations, including certain data processing operations in respect of the data concerned.

63      First of all, a specific identifier would be assigned to each of the questions set for each of the candidates, given that, as the Commission explained, the questions set were not the same for each candidate. The applicant made clear in that regard that he did not wish to be given any indication of the content of the questions set for each of the candidates. Next, it would be necessary to indicate, for each question, the language in which it was presented (maintaining the same identifier for the same question irrespective of the language), the type of question involved, whether or not the question had been neutralised and the time spent by each candidate on answering it, and, lastly, to supply an identifier for the expected answer and for the answer given. According to the application for access, the identifiers of the expected answers and the answers given should not, however, give any indication of the content of those answers, but should merely enable a comparison to be made, in respect of each question, of the expected answer and the answer given. The applicant stated in his application, in essence, that if, for any particular question, the answer options were not presented in the same order to all the candidates who were set that question, it would be necessary to ensure that the same identifier was always used for each answer option, so as to ensure that the information obtained was comparable. With regard to situational judgement questions, according to the applicant, the desired answer and the answer obtained should be indicated in their entirety, namely the best and the worst options. Lastly, all the candidates who took the preselection tests at issue should be anonymised by assigning each of them a specific identifier.

64      These various operations should ensure that the applicant has comparable data in respect of all the candidates who took the tests at issue, thus enabling him to construct a table and to draw up statistics on those tests.

65      The Commission states, in essence, that it does not have a search tool that would enable it to extract that combination of data by means of a normal or routine search of its databases. On the contrary, given that that combination does not correspond to any scheme that is supported by its database, responding favourably to the applicant’s application would require the development of a new search statement, in the form of an SQL query, not just a search in that database on the basis of existing criteria using existing SQL queries.

66      According to settled case-law, a simple presumption of legality attaches to any statement of the institutions relating to the non-existence of documents requested (see judgments of 26 April 2005 in Sison v Council, T‑110/03, T‑150/03 and T‑405/03, ECR, EU:T:2005:143, paragraph 29 and the case-law cited, and 30 January 2008 in Terezakis v Commission, T‑380/04, EU:T:2008:19, paragraph 155). That presumption applies equally where an institution declares that the combination of data requested in the application for access received is not supported by the database(s) in which those data are stored and that, therefore, that combination cannot be obtained by means of a normal or routine search.

67      In the present case, the applicant has not sought to challenge the Commission’s assertion that EPSO did not have, as such, a table containing the combination of data he wished to obtain. On the contrary, the applicant accepts, in essence, that access to the combination of data to which he refers presupposes a certain amount of computer programming work, namely the development of new SQL queries and, therefore, the creation of a new search result in the database (that is to say, a ‘report’ in the nomenclature of databases), which cannot be accomplished using the tools currently available for the databases concerned. It is, moreover, common ground that the applicant did not request access to the raw data contained in the database concerned.

68      Contrary to what is maintained by the applicant, however, the operations involved in that programming work, summarised in paragraph 63 above, are not comparable to a normal or routine search in the database concerned, carried out using the search tools available to the Commission in respect of that database. The performance of such operations would be more akin to classification according to a scheme unsupported by those databases, using search tools — SQL queries — which must be developed if the application for access is properly to be granted.

69      In the present case, contrary to what is maintained by the applicant, the search tool associated with the database at issue as referred to in paragraph 150 of the judgment in Dufour v ECB, cited in paragraph 55 above (EU:T:2011:634), is not made up of all the SQL queries that may hypothetically be conceived and devised in order to search, add, amend or delete data in the database in question.

70      In fact that search tool consists of existing SQL queries which are already used on a more or less regular basis for the database at issue in the present case. Thus, the normal or routine searches as referred to in paragraph 153 of the judgment in Dufour v ECB, cited in paragraph 55 above (EU:T:2011:634), are those carried out using those pre-programmed SQL queries. Only those searches result in the production of existing documents. To conclude otherwise would effectively be to distort the concept of an existing document by extending it to all documents which may, hypothetically, be generated from the data contained in the database in question using one or more SQL queries. Even if the Commission were theoretically able to produce such documents, they constitute new documents within the meaning of Article 3(a) of Regulation No 1049/2001 as interpreted by the case-law. It should also be pointed out that the relative ease or readiness with which those new search tools can be developed is not a relevant criterion for the purposes of assessing whether a document requested is one that already exists or one that is new.

71      That conclusion is not called into question by the fact, put forward by the applicant, that individual statements of results are sent by EPSO to every candidate who has taken the tests.

72      Admittedly, the drawing-up of such statements is among EPSO’s usual activities and those individual statements contain some of the data the applicant wishes to obtain. Thus, for example, the individual statement of the applicant’s results in the preselection tests at issue, which was sent to him on 28 June 2012, contains, inter alia, a list of the expected answers and of the answers given (without any indication of the content of those answers), the time spent on answering each question and an indication of whether a particular question was neutralised.

73      It is, however, undisputed that the communication to the applicant of all such individual statements sent to the candidates who took the relevant preselection tests, and from which information relating to the candidates’ private lives would have been removed, would not enable him to draw up the statistical table that he wishes to use to allay his suspicions of discrimination in relation to those tests. As is apparent from paragraph 63 above, that would at the very least presuppose that a separate identifier is assigned to each of the candidates who took those tests and to each of the questions set for each of those candidates, and that an indication of the language in which each of the questions was presented is added to each statement.

74      Furthermore, the individual statement of the applicant’s results in the preselection tests, annexed to the application, contains detailed tables of results in relation to only three of the four tests taken, that is the verbal reasoning test, the numerical reasoning test and the abstract reasoning test. It does not, however, contain an individual table of results in relation to the situational judgement test. Yet the application for access made by the applicant relates to all the questions set in those tests, including those of the situational judgement test.

75      Lastly, while the individual statements in question could be communicated to the applicant if he requested them, subject to the exceptions laid down by Regulation No 1049/2001 and in particular the provisions concerning the protection of personal data, the search tools and classification scheme used by the Commission to produce those individual statements do not enable it to extract data according to the information set out in the applicant’s application for access without it being necessary to develop a new SQL query.

76      As regards EPSO’s practice of providing contractors with statistical data in respect of the test results, to which the applicant refers in the application initiating proceedings, it is not capable of showing that the combination of data the applicant wishes to obtain corresponds to a classification scheme that is supported by the databases held by EPSO, and therefore that the development of a new search statement would not be necessary.

77      The applicant refers specifically in that respect to EPSO’s call for tenders for a framework contract for the creation of a database. According to that call for tenders, the test forms drawn up by the tenderer must be free of any gender, age and/or citizenship bias. In cases where, within a period of two years after a test form has been delivered to EPSO, it shows a statistically large difference in performance data between genders, age groups and citizenships, EPSO reserves the right to have the test form replaced free of charge by the contractor, and undertakes, in such cases, to provide the contractor with the answer matrix together with the relevant statistical raw data generated from test sessions(s) in order to permit analysis of the issue.

78      However, it must be noted that the criteria of candidates’ gender, age and citizenship, to which the statistics referred to in the call for tenders relate, do not correspond to any of the categories of information which the applicant wishes to obtain in the present case, as summarised in paragraph 6 above. Moreover, that call for tenders covered only the creation of a database of test forms containing abstract/inductive reasoning ‘test items’, and excluding, inter alia, verbal or numerical reasoning questions. It must be borne in mind, however, that the applicant’s application relates not only to the abstract reasoning questions but also to the verbal and numerical reasoning questions, as well as to the situational judgement questions set for the candidates who took the preselection tests at issue. Lastly, according to the Commission’s statements, it has never yet produced the answer matrix and the relevant statistical raw data as provided for in the call for tenders.

79      Consequently, it must be held that there are major differences between the subject of the application for access at issue and the statistical data to which the call for tenders cited by the applicant refers, with the result that that call for tenders is irrelevant for the purposes of demonstrating that that application relates to one or more existing documents within the meaning of Regulation No 1049/2001 as interpreted by the case-law. Furthermore, the mere possibility of generating those documents cannot therefore be used to establish that their production falls within the parameters of a normal or routine search as referred to in paragraph 153 of the judgment in Dufour v ECB, cited in paragraph 55 above (EU:T:2011:634).

80      It follows from all the foregoing considerations that, as the Secretariat-General stated in the first contested decision, the application made by the applicant in procedure Gestdem 2012/3258 does not relate to access, even partial, to one or more existing documents held by EPSO, but, on the contrary, relates to the production of new documents which cannot be extracted from a database by means of a normal or routine search using an existing search tool.

81      Accordingly, the action must be dismissed in so far as it relates to annulment of the first contested decision.

 Costs

82      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Furthermore, under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court. As the applicant has been largely unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Declares that there is no longer any need to adjudicate on the claim for annulment of the implied decision refusing access in procedure Gestdem 2013/0068;

2.      Dismisses the action as to the remainder;

3.      Orders Mr Rainer Typke to pay the costs.

Delivered in open court in Luxembourg on 2 July 2015.

[Signatures]

* Language of the case: English.

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