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

JUDGMENT OF THE GENERAL COURT (Third Chamber)

20 September 2016 (*)

(Access to documents — Regulation (EC) No 1049/2001 — Regulation (EC) No 1367/2006 — Documents relating to endocrine-disrupting chemicals — Partial refusal of access — Exception relating to the decision-making process — Article 4(3) of Regulation No 1049/2001)

In Case T‑51/15,

Pesticide Action Network Europe (PAN Europe), established in Brussels (Belgium), represented by B. Kloostra, lawyer,

applicant,

supported by:

Kingdom of Sweden, represented by A. Falk, C. Meyer-Seitz, U. Persson, N. Otte Widgren, E. Karlsson and L. Swedenborg, acting as Agents,

intervener,

v

European Commission, represented by A. Buchet, P. Mihaylova and J. Tomkin, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU seeking annulment of the Commission’s Decision of 24 November 2014, under the reference Ares (2014) 3900631, in so far as it refuses access to documents relating to endocrine-disrupting chemicals,

THE GENERAL COURT (Third Chamber),

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

Registrar: C. Herren, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 May 2016,

gives the following

Judgment

 Background to the dispute

1        The applicant, Pesticide Action Network Europe (PAN Europe), is an association under Belgian law which focuses, inter alia, on combating substances that disturb the endocrine system.

2        On 3 January 2014, the applicant lodged with the European Commission an application for access to all documents relating to endocrine-disrupting chemicals, on the basis of European Parliament and Council Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) and European Parliament and Council Regulation (EC) No 1367/2006 of 6 September 2006 on the application of the provisions of the Aarhus Convention on access to information, public participation in the decision-making process and access to justice in environmental matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

3        On 30 June 2014, the Commission granted full access to 19 of the 55 documents at issue as well as partial access to 15 others, and refused access to 21 of them.

4        On 6 July 2014, the applicant lodged a confirmatory application with the Commission.

5        By decision of 24 November 2014, under the reference Ares (2014) 3900631 (‘the contested decision’) the Commission granted partial access to four documents as well as further partial access to three others, and confirmed the refusal of access to 17 others.

6        In the contested decision, the Commission first justified its refusal of full or partial access on the basis of the exceptions under Article 4(1)(a), third indent, of Regulation No 1049/2001 (protection of international relations), Article 4(1)(b) of that regulation (protection of privacy and the integrity of the individual), Article 4(2), first indent, of the same regulation (protection of commercial interests of a natural or legal person) and Article 4(3) of that regulation (protection of the decision-making process). Secondly, with regard to the documents concerned by its final two exceptions, the Commission noted that there was no overriding public interest that could justify the disclosure of those documents. Finally, pointing out that broad partial access had been granted to four documents and that further partial access had been granted to three documents, the Commission considered that further access was not possible.

 Procedure and forms of order sought

7        The applicant brought the present action by an application lodged at the Court Registry on 3 February 2015.

8        By document lodged at the Court Registry on 27 March 2015, the Commission requested that the present action be suspended until the definitive judgment in Case C‑673/13 P, Commission v Stichting Greenpeace Nederland and PAN Europe. The applicant submitted its observations on that request within the prescribed period. On 2 June 2015, the President of the Third Chamber of the General Court refused to grant that request.

9        By document lodged at the Court Registry on 21 May 2015, the Kingdom of Sweden sought leave to intervene in these proceedings in support of the form of order sought by the applicant. The President of the Third Chamber of the General Court granted leave to intervene by decision of 21 July 2015. The Kingdom of Sweden lodged its statement in intervention. Only the Commission submitted observations thereon within the period prescribed.

10      The applicant, supported by the Kingdom of Sweden, claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

11      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

12      The applicant raises two pleas in law in support of its action, the first alleging breach of Regulation No 1367/2006 and the second breach of Regulation No 1049/2001.

13      In this connection, the first point to be noted is that the applicant, in the present action, is primarily challenging the Commission’s assessment regarding the exception relating to the protection of the decision-making process referred to in Article 4(3) of Regulation No 1049/2001, which was relied on with regard to the documents designated under numbers 9, 13, 14, 15, 16, 17, 17a, 20, 22, 24, 25, 29, 30, 31, 37, 38, 39, 41, 42 and 43. On the other hand, the applicant does not put forward any arguments concerning the Commission’s assessment in relation to the other exceptions on which it relied in order to justify the refusal to disclose the documents at issue.

14      It follows that the refusal of disclosure must be considered to be valid in so far as it is based on those latter exceptions and that, in the present action, the consideration of the arguments put forward by the applicant must be restricted to those concerning the documents to which access was refused on the basis of Article 4(3), first subparagraph, of Regulation No 1049/2001. It must be specified in this connection that, in so far as access to part of those documents was also refused on the basis of another exception, those arguments must be rejected as ineffective.

15      The Court considers it appropriate to examine the second plea in law first.

16      That plea, in which the applicant claims that the contested decision breaches Article 4(3) of Regulation No 1049/2001, essentially comprises three parts.

17      In the first of those parts, the applicant argues that the Commission has not shown in the contested decision that the ground for refusal under that provision is applicable. It has not been shown that disclosure would seriously undermine the decision-making process. In that context, the applicant relies on case-law of the Court of Justice and the General Court and asserts that disclosure of information concerning the determination of scientific criteria relating to endocrine-disrupting chemicals does not undermine the decision-making process but can, in contrast, serve it in the context of democratic debate and citizens exercising their democratic rights.

18      The Commission contends that disclosure of the documents for which access was refused would seriously undermine its decision-making process and the contested decision outlines in detail the reasoning followed in that regard. In that context, the Commission challenges the relevance of the case-law relied upon by the applicant in support of its arguments, in particular because of differences in the nature of the documents at issue and the process concerned, and asserts that reference, in particular, to democratic debate and citizens’ rights has no impact on the fact that disclosure of the documents at issue would compromise its decision-making process.

19      It must be recalled in this connection that Regulation No 1049/2001 is intended, as indicated in Article 1 and Article 2(1) and (3) thereof, to grant the public a right of access to documents of the institutions in all areas of activity of the European Union, subject to certain exceptions defined in that regulation.

20      In accordance with recital 1 thereof, that regulation forms part of the intention expressed in the second paragraph of Article 1 TEU, inserted by the Treaty of Amsterdam, to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As recital 2 of Regulation No 1049/2001 points out, the public’s right of access to documents of the institutions relates to the democratic nature of the institutions.

21      It is settled case-law that the exceptions to access to documents must interpreted and applied strictly so as not to frustrate application of the general principle that the public should be given the widest possible access to documents held by the institutions. Moreover, the principle of proportionality requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view.

22      Furthermore, the examination required for the processing of a request for access to documents must be specific in nature. On the one hand, the mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception. In principle, such an application can be justified only if the institution has previously determined (i) that access to the document would specifically and actually undermine the protected interest and (ii) in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049/2001, that there is no overriding public interest justifying disclosure of the document concerned. On the other hand, the risk of the protected interest being undermined must be reasonably foreseeable and not purely hypothetical. That examination must be apparent from the reasons for the decision (see judgment of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 29 and the case-law cited).

23      Under the first subparagraph of Article 4(3) of Regulation No 1049/2001, access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, is to be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

24      As is apparent from the principles set out in paragraph 22 above, the application of that exception requires it to be established that access to the document in question drawn up by the institution for its internal use was likely, specifically and actually, to undermine protection of the institution’s decision-making process, and that the risk of that interest being undermined was reasonably foreseeable and not purely hypothetical (see judgment of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 70 and the case-law cited).

25      In addition, in order to be covered by the exception in the first subparagraph of Article 4(3) of Regulation No 1049/2001, the decision-making process must be seriously undermined. That is the case, in particular, where the disclosure of the document in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all of the circumstances of the case including, inter alia, the negative effects on the decision-making process relied on by the institution (see judgment of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 71 and the case-law cited).

26      A preliminary point to note in the present case is that it is not disputed that, as is apparent from the contested decision, the documents at issue are documents drawn up by the Commission for its internal use, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001. It must furthermore be stated that it is apparent from the file, in particular from the request for access of 3 January 2014 and the declarations of the parties at the hearing, that the decision-making process at issue in the present case is that relating to the specification of scientific criteria for the determination of properties disrupting the endocrine system, in particular pursuant to Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1), and Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (OJ 2012 L 167, p. 1). At the date of the contested decision, that process had not been completed, since the measures for specifying those criteria had not yet been adopted.

27      Next, it must be pointed out that the contested decision states that, having regard to the fact that the discussion on the criteria for the determination of properties disrupting the endocrine system had not been brought to a close and that the Commission was, at service level, evaluating the potential economic, social and environmental consequences, that institution considered that the premature disclosure of its internal reflections at the point in time when the question was a still open and was undergoing an important internal assessment would seriously undermine its decision-making process, whereas it should remain free to explore all possible options in that sensitive area, free from external pressure. The Commission stated in that regard that the risk of interference by external parties and undue pressure was not hypothetical, given that the requested disclosure concerned the sensitive subject of endocrine-disrupting chemicals, which had received a lot of outside interest from organisations and interest representatives. In its view, premature public release of the abovementioned documents would also prejudice its margin of manoeuvre and severely reduce its capacity to contribute to reaching compromises internally.

28      It must therefore be stated that, in the contested decision, the Commission justifies the refusal to communicate the documents at issue on the basis of the exception in the first subparagraph of Article 4(3) of Regulation No 1049/2001 on the grounds of, essentially, alleged external pressure and interference and, furthermore, a reduction in its margin of manoeuvre and its capacity to reach a compromise internally.

29      It is necessary to examine whether those two grounds relied upon by the Commission allow access to the requested documents to be refused on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001.

30      As regards, first, the alleged external pressure and interference, it must be recalled that protection of the decision-making process from targeted external pressure may constitute a legitimate ground for restricting access to documents relating to the decision-making process. Nevertheless, the reality of such external pressure must be established with certainty, and evidence must be adduced to show that there was a reasonably foreseeable risk that that process would be substantially affected owing to that external pressure (see, to that effect, judgments of 18 December 2008 in Muñiz v Commission, T‑144/05, not published, EU:T:2008:596, paragraph 86, and 9 September 2014, MasterCard and Others v Commission, T‑516/11, not published, EU:T:2014:759, paragraph 71).

31      It is to be noted in the present case that, in order to show that there was a non-hypothetical risk of external pressure and interference, the Commission merely claims in the contested decision that the subject of endocrine-disrupting chemicals is a sensitive one and has received a lot of external attention from organisations and interest representatives.

32      Such general, vague and imprecise statements do not prove that there is genuine external pressure on the decision-making process at issue in the present case and are not based on any concrete evidence such as to justify them.

33      Those statements are therefore not sufficiently specific and substantiated to establish the reality of external pressure and interference or, a fortiori, to establish that there would have been a reasonably foreseeable risk of the decision-making process being substantially affected if the requested documents had been disclosed.

34      In any event, it is apparent from the case-law that the fact that a subject is a sensitive one and is followed with interest cannot constitute in itself an objective reason sufficient to justify the concern that the decision-making process would be seriously undermined, without calling into question the very principle of transparency intended by the TFEU (see, to that effect, judgment of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 80).

35      As regards, secondly, the reduction of its margin of manoeuvre and its capacity to obtain an internal compromise, the Commission confines itself, in the contested decision, to making general, vague and imprecise claims and does not adduce any evidence proving that in the present case the disclosure of the documents would reduce its margin of manoeuvre or render reaching a compromise between its services more difficult. Such a reduction has not been proven in concrete terms in the contested decision.

36      In any event, according to the case-law, the fact that the margin of manoeuvre and the capacity to reach a compromise internally are reduced cannot establish that there is a sufficiently serious and reasonably foreseeable risk justifying the application of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 (see, to that effect, judgment of 22 March 2011, Access Info Europe v Council, T‑233/09, EU:T:2011:105, paragraph 67).

37      It follows from the foregoing that the grounds relied on by the Commission in the contested decision are not sufficient to establish that disclosing the documents at issue would specifically and actually undermine the Commission’s decision-making process, or that the risk that it would be undermined was reasonably foreseeable or even, a fortiori, that the risk was that it would be seriously undermined, as required under the case-law (see paragraphs 24 and 25 above).

38      None of the arguments put forward by the Commission in the defence suffice to call that finding into question.

39      The Commission contends in the defence, first, that the risk of interference by third parties and of undue pressure is not hypothetical, given that the requested disclosure concerns the sensitive subject of endocrine-disrupting chemicals in respect of which considerable interest has been expressed from different organisations and representative associations and, secondly, that the disclosure of the documents at issue would lead to a situation in which the Commission would be subject to sustained attempts by third parties to influence the outcome of its deliberations, which would disrupt its decision-making process, reduce its margin of manoeuvre and reduce its capacity to contribute to reaching compromises. In doing so, the Commission essentially reproduces the reasoning in the contested decision, without adducing any additional information demonstrating that that decision is well founded. That statement must therefore be disregarded for the reasons set out in paragraphs 30 to 37 above.

40      As regards the other arguments put forward in the defence, it must be stated that they are not capable of establishing that the refusal to disclose the documents requested on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001 is well founded.

41      Thus, first, it is necessary to reject the claim that the documents at issue are documents drawn up for internal use only and the premature disclosure of the internal reflections at the point in time when the question of the criteria for the determination of chemicals with endocrine-disrupting properties is still under consideration might seriously undermine the decision-making process. That vague and abstract claim is not substantiated by any detailed evidence which would enable it to be found that the risk of that process being undermined is established. The general fact, referred to in that context, that the documents contain internal reflexions on the policy options under consideration relating to the criteria for the determination of the substances concerned and that, in the course of those reflexions, the Commission must analyse the potential consequences from the economic, social and environmental perspectives in order to be able to take an informed and balanced decision does not constitute concrete evidence enabling it to be concluded that the risk that that process will be undermined is reasonably foreseeable and not purely hypothetical in the present case. In any event, the fact that the documents concerned are intended for internal use and concern a question which is still open is irrelevant. The exception at issue in the first subparagraph of Article 4(3) of Regulation No 1049/2001 covers access to documents for internal use which relate to a matter where the institution has not yet taken a decision. However, neither by its wording nor by reason of the interest that it protects does that exception preclude the possibility of requesting access to documents for internal use containing a preliminary analysis (judgment of 18 December 2008, Muñiz v Commission, T‑144/05, not published, EU:T:2008:596, paragraph 80) or the policy options under consideration. Thus, the preliminary nature of the documents and the fact that they were still being commented upon and analysed by the Commission do not therefore establish, in themselves, that the decision-making process might have been seriously undermined (judgment of 9 September 2014, MasterCard and Others v Commission, T‑516/11, not published, EU:T:2014:759, paragraph 67). All the Commission’s arguments concerning the preliminary nature of the reflexions in the documents at issue and their internal use must therefore be rejected.

42      Secondly, the Commission’s contention that the premature disclosure of internal reflexions would alter the nature of communications between members of its services and would hamper and have a dissuasive effect on the free exchange of ideas must also be rejected. For the purpose of deciding whether there is a legitimate reason for fearing that the disclosure of documents might undermine the decision-making process, the freedom of expression of the Commission’s services does not play a decisive role, as the determinant issue is whether the concerns of the relevant institution are objectively justified (see, to that effect, judgment of 18 December 2008 in Muñiz v Commission, T‑144/05, not published, EU:T:2008:596, paragraph 90). In the present case, the Commission’s general claim is not substantiated by any evidence, since that institution is relying on a mere statement which is not supported by any detailed arguments. In particular, it does not contain any precise and specific information permitting the inference that, in the present case, it is reasonably foreseeable that the disclosure of the documents requested would have the effect referred to by the Commission, and so the Commission’s concerns cannot be considered to be objectively justified.

43      Thirdly, it is also necessary to reject the claim that, in certain sensitive areas, mere disclosure that a particular option is under consideration may already impact upon the behaviour of market operators. First, at the hearing the Commission stated that that claim in the defence was general and was merely intended as a submission that premature disclosure of internal documents could have an impact. In any event, the contested decision does not rely on that ground to justify the refusal of access to documents. Moreover, the Commission is relying on a mere statement and has not substantiated that statement by any concrete and detailed information permitting the inference that the concern mentioned is objectively justified. In so far as the Commission by its claim is referring to the envisageable political options in the context of the definition of the criteria for the identification of endocrine-disrupting chemicals, it must be noted that the Commission, in its roadmap published in June 2014 on that definition in the context of the implementation of Regulations Nos 1107/2009 and 528/2012, sets out, inter alia, several of those options, so that it cannot rely on the consequences of their disclosure to justify a refusal to disclose documents.

44      It follows from the foregoing that the Commission incorrectly based its refusal to disclose the documents at issue on the exception in the first subparagraph of Article 4(3) of Regulation No 1049/2001.

45      Accordingly, the Commission erred in refusing access to the documents referenced as 9, 13, 14, 15, 16, 17, 17a, 20, 22, 24, 25, 29, 30, 31, 37, 38, 39, 41, 42 and 43 on the basis of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001.

46      Consequently, the contested decision must be annulled in so far as it refuses access to those documents purely on the basis of that provision, without it being necessary to examine the other parts of the present plea and the first plea in law.

47      It must also be noted, in response to the arguments developed by the Commission at the hearing concerning the impact which it considers the present judgment will have on its decision-making processes in the future, that the abovementioned findings, first, are based exclusively on the matters put forward by the Commission in the contested decision and, secondly, do not mean that that institution must grant access to the documents requested. It must be pointed out in this connection that, pursuant to Article 266 TFEU, the Commission is required to take the necessary measures to comply with this judgment. It must therefore undertake a fresh examination of the situation and decide either that access, if necessary partial access, may be granted to the documents requested, or confirm the refusal of access to those documents, putting forward matters capable of justifying to the requisite legal standard that refusal, in particular having regard to the requirements set out in the case-law mentioned in paragraphs 21 to 25 above.

 Costs

48      Pursuant to 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 138(1) of those Rules, the Member States which have intervened in the proceedings must bear their own costs.

49      In the present case, since the Commission has been unsuccessful in the main part of its claims, it must be ordered to pay the applicant’s costs, in accordance with the form of order sought by the applicant. The Kingdom of Sweden is to bear its own costs.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Annuls the decision of the European Commission of 24 November 2014, under the reference Ares (2014) 3900631, in so far as it refuses access to the documents designated under numbers 9, 13, 14, 15, 16, 17, 17a, 20, 22, 24, 25, 29, 30, 31, 37, 38, 39, 41, 42 and 43, on the basis of the first subparagraph of Article 4(3) 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;

2.      Dismisses the action as to the remainder;

3.      Orders the Commission, in addition to bearing its own costs, to pay those incurred by Pesticide Action Network Europe (PAN Europe);

4.      Declares that the Kingdom of Sweden is to pay its own costs.

Delivered in open court in Luxembourg on 20 September 2016.

[Signatures]

* Language of the case: English.

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