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

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

11 July 2018 (*)

(Access to documents — Regulation (EC) No 1049/2001 — Commission documents relating to the compatibility with EU law of Investor-State Dispute Settlement and the Investment Court System in EU trade agreements — Partial refusal of access — Exception concerning the protection of the public interest as regards international relations — Exception concerning the protection of legal advice — Exception concerning the protection of the decision-making process — Overriding public interest)

In Case T‑644/16,

ClientEarth, established in London (United Kingdom), represented by O. Brouwer, lawyer, and N. Frey, Solicitor,

applicant,

v

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

defendant,

APPLICATION under Article 263 TFEU seeking the annulment of Commission Decision C(2016) 4286 final of 1 July 2016, refusing access to certain documents relating to the compatibility with EU law of Investor-State Dispute Settlement and the Investment Court System in EU trade agreements,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins, President, R. Barents (Rapporteur) and J. Passer, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 1 February 2018,

gives the following

Judgment

 Background to the dispute

1        On 19 January 2016 the applicant, ClientEarth, submitted a request for access to documents to the European Commission, relying on 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).

2        That request sought access to: (i) ‘all documents containing legal advice given by the Commission’s legal services on the compatibility of [Investor-State Dispute Settlement] ... and Investment Court System ... in [European Union] trade agreements with the EU Treaties’; (ii) ‘all documents, including email correspondence, agendas and minutes of meetings, on discussions between the Commission’s legal service and [the Commission’s Directorate-General (DG) for Trade] on the compatibility of [Investor-State Dispute Settlement] and the [Investment Court System] with the EU Treaties’; (iii) ‘all documents on the assessment of that legal advice of the Commission’s legal service by DG Trade’; and (iv) ‘any other correspondence, documents and reports pertaining to the compatibility of [Investor-State Dispute Settlement] and [Investment Court System] with the EU Treaties … other than those that are publicly available’.

3        On 9 March 2016 the Commission informed the applicant that seven documents had been identified as falling within the scope of the request. Access to some of those documents was refused, partially or entirely, on the basis of, inter alia, the third indent of Article 4(1)(a) of Regulation No 1049/2001, concerning the protection of the public interest as regards international relations, the second indent of Article 4(2) of that regulation, concerning the protection of legal advice, and the first subparagraph of Article 4(3) of that regulation, concerning the protection of the Commission’s decision-making process.

4        In particular, access was partially refused to the following documents:

–        Note to the file of 9 December 2014 entitled: ‘The relationship between international investment tribunals and domestic courts and rule of law requirements for international investment tribunals’ (Ares(2014)4123374);

–        Document entitled ‘[Investor-State Dispute Settlement ] and the principle of autonomy of EU law following Opinion 2/13’ (Ares(2016)947907);

–        Document entitled ‘Review and enforcement of [Investor-State Dispute Settlement ] penalties’ (Ares(2016)948083);

–        Document entitled ‘The relationship between [Investor-State Dispute Settlement] and domestic judicial systems’ (Ares(2016)948172).

5        Access was refused entirely to the Note de réflexion [discussion note] of 26 January 2015 entitled ‘Conditions pour la compatibilité d’un mécanisme de re'glement des différends entre investisseurs et Etats dans un accord de protection d’investissement conclu entre l’Union et un Etat tiers’ [Conditions for compatibility of investor-state dispute settlement in an investment protection agreement concluded between the European Union and a third country] (Ares(2015)306625) (‘Document 306625’).

6        On 1 April 2016 the applicant sent to the Commission a confirmatory application, pursuant to Article 7(2) of Regulation No 1049/2001.

7        On 1 July 2016 the Commission adopted Decision C(2016) 4286 final (‘the contested decision’) confirming, inter alia, the Commission’s initial decision in respect of the documents identified in paragraphs 4 and 5 above (‘the requested documents’).

8        In the contested decision, the Commission stated, inter alia, having regard to the protection of the public interest as regards international relations, the following:

‘The (parts of) the withheld documents describe and assess possible legal options on open sensitive issues relating to [Investor-State Dispute Settlement] (including the creation of an [Investment Court System]) which are still under negotiation in the framework of the Transatlantic Trade Investment Partnership … and other agreements. [The documents in question] were drafted by staff members of the Legal Service as a contribution to an ongoing discussion within the Commission aiming to assess the options of what is legally possible in relation to [Investor-State Dispute Settlement] and the [Investment Court System] and how this could be achieved.’

9        Next, the Commission explained that disclosure of the requested documents could undermine the public interest as regards international relations, in that disclosure would reveal the ‘legal considerations underpinning the Commission’s negotiating proposals in ongoing negotiations on [the Transatlantic Trade and Investment Partnership] and other agreements’. That would weaken the Commission’s negotiating position by giving to the Commission’s ‘negotiating partners ... an insider look into the Union’s strategy and negotiating margin of manoeuvre’. That disclosure would negatively affect the Commission’s effectiveness in the negotiations, ‘in a realistic and non-hypothetical way’.

10      Furthermore, the Commission considered, relying on the judgment of 19 March 2013, In 't Veld v Commission (T‑301/10, EU:T:2013:135), that ‘public disclosure of [parts of the requested documents] would reveal an assessment of the legal options in relation to [Investor-State Dispute Settlement] and the [Investment Court System] and how this could be achieved by the EU with regard to [Investor-State Dispute Settlement] and the [Investor Court System]’ and that public disclosure thereof would therefore reveal the European Union’s negotiating margin.

11      In conclusion, the Commission stated that:

‘The [parts of documents not disclosed] concern the issue of the relationship between [Investor-State Dispute Settlement] and EU domestic courts in the light of the principle of autonomy of EU law. These documents were specifically prepared in relation to the ongoing [Transatlantic Trade and Investment Partnership] negotiations, but they are also relevant in connection with other ongoing trade and investment negotiations with third countries. Making available the withheld parts of these documents to the public would seriously prejudice the negotiating position of the Union in all those ongoing negotiations, as the considerations they contain remain valid for all ongoing trade and investment negotiations with other third countries.’

 Procedure and forms of order sought

12      By application lodged at the Court Registry on 9 September 2016, the applicant brought the present action.

13      By order of 15 November 2017, the Court ordered the Commission, on the basis of Article 91(c) of the Court’s Rules of Procedure, to produce a complete version of the requested documents. The Commission complied with that request within the period prescribed. In accordance with Article 104 of the Rules of Procedure, those documents have not been communicated to the applicant.

14      At the hearing on 1 February 2018, the parties presented oral argument and replied to the oral questions put by the Court.

15      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

16      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

17      The applicant puts forward five pleas in law in support of its action. The first plea alleges errors of law, a manifest error of assessment and a failure to state reasons in the application of the third indent of Article 4(1)(a) of Regulation No 1049/2001. The second plea alleges errors of law, a manifest error of assessment and a failure to state reasons in the application of the second indent of Article 4(2) of Regulation No 1049/2001. The third plea alleges errors of law, a manifest error of assessment and a failure to state reasons in the application of the first subparagraph of Article 4(3) of Regulation No 1049/2001. The fourth plea alleges errors of law, a manifest error of assessment and a failure to state reasons in the application of the overriding public interest test within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001 and of the first subparagraph of Article 4(3) of that regulation. The fifth plea alleges errors of law, a manifest error of assessment and a failure to state reasons in the application of Article 4(6) of Regulation No 1049/2001.

 Preliminary considerations

18      As a preliminary observation, it should be noted that, in accordance with recital 1 of Regulation No 1049/2001, that regulation reflects the intention expressed in the second paragraph of Article 1 TEU of ‘mark[ing] 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 is stated in recital 2 of that regulation, the public right of access to documents of the institutions is related to the democratic nature of those institutions (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 34, and of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 27).

19      To that end, the purpose of Regulation No 1049/2001, as is stated in recital 4 and reflected in Article 1 thereof, is to confer on the public as wide a right of access as possible to documents of the institutions (judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 61; of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 69; and of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 28).

20      That right is nonetheless subject to certain limitations based on grounds of public or private interest (judgment of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 62). More specifically, and in accordance with recital 11, Article 4 of Regulation No 1049/2001 provides for a number of exceptions that enable the institutions to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that article (judgments of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 71, and of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 29).

21      As such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 63; of 1 July 2008, Swedenand Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 36; and of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 30), with the result that the mere fact that a document concerns an interest protected by an exception is not of itself a sufficient ground for the application of that exception (judgments of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 64; of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 69; and of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 29).

22      If the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually undermine the interest protected by the exception — among those provided for in Article 4 of Regulation No 1049/2001 — upon which it relies. In addition, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (see judgment of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 31 and the case-law cited; judgment of 3 July 2014, Council v In ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 52).

23      As regards the interests protected by Article 4(1)(a) of Regulation No 1049/2001, it must be accepted that the particularly sensitive and fundamental nature of those interests, combined with the fact that access must, under that provision, be refused by the institution if disclosure of a document to the public would undermine those interests, confers on the decision which must thus be adopted by the institution a complexity and delicacy that call for the exercise of particular care. Such a decision requires, therefore, a margin of appreciation (judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 35, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 32). This is corroborated by the fact that the exceptions set out in Article 4(1) of Regulation No 1049/2001 are framed in mandatory terms, in that the institutions are obliged to refuse access to documents falling under any one of those mandatory exceptions once the relevant circumstances are shown to exist, and there is no need to weigh the protection of the public interest against the protection of other interests (see, to that effect, judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 46; of 25 April 2007, WWF European Policy Programme v Council, T‑264/04, EU:T:2007:114, paragraphs 44 and 45; and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 44).

24      Against that background, the criteria set out in Article 4(1)(a) of Regulation No 1049/2001 are very general, since access must be refused, as is clear from the wording of that provision, if disclosure of the document concerned would ‘undermine’ the protection of the ‘public interest’ as regards, inter alia, ‘international relations’ (see judgment of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 33 and the case-law cited).

25      Thus, the principle of strict interpretation of the exceptions set out in Article 4 of Regulation No 1049/2001 does not, in respect of the public interest exceptions provided for in Article 4(1)(a) of that regulation, preclude the institution concerned from enjoying a wide discretion for the purpose of determining whether disclosure of a document to the public would undermine the interests protected by that provision. As a corollary, the review by the General Court of the legality of a decision to refuse access to a document, when an institution relies on one of those exceptions, must be limited to verifying whether procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated and whether there has been a manifest error of assessment or a misuse of powers (judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 64, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 34).

26      The first plea in law must be examined in the light of those considerations.

 The first plea in law: errors of law, manifest error of assessment and failure to state reasons in the application of the third indent of Article 4(1)(a) of Regulation No 1049/2001

27      The applicant submits, in essence, that the Commission incorrectly applied the third indent of Article 4(1)(a) of Regulation No 1049/2001.

28      The Commission contends that the applicant’s arguments should be rejected as being unfounded.

29      In accordance with the third indent of Article 4(1)(a) of Regulation No 1049/2001, the institutions are to refuse access to a document where its disclosure would undermine the protection of the public interest as regards international relations.

30      As a preliminary point, it must be observed that the heading of the plea, as it appears in the application, refers to ‘errors of law’, ‘manifest error of assessment’ and ‘failure to state reasons’.

31      As regards the ground of objection concerning an alleged failure to state reasons, it should be observed that the applicant has referred to the failure to state reasons only in the heading of the present plea, but has omitted to set out any supporting arguments. In those circumstances, it must be concluded that the applicant does not, in essence, rely on a failure to state reasons.

32      In any event, the Commission set out in sufficient detail in the contested decision the matters of fact and law and all the considerations which led it to adopt that decision. Moreover, the statement of reasons in that decision was sufficient to enable the applicant to know the reasons for the decision for the purpose of defending its rights and appears sufficient to enable the Court to exercise its power of review. Therefore, there is no failure to state reasons in the contested decision with regard to the establishment of an infringement of the third indent of Article 4(1)(a) of Regulation 1049/2001 and that ground of objection must be rejected.

33      As regards the grounds of objection relating to alleged errors of law and manifest error of assessment in applying the third indent of Article 4(1)(a) of Regulation No 1049/2001, it should be noted that those grounds are also mentioned in the heading of the present plea. Despite the fact that the connection between the arguments relied on in support of the existence of errors of law and those in support of the existence of an error of assessment is not clear from the applicant’s written pleadings, it follows from the applicant’s submissions that it wishes to advance seven arguments against the legality of the contested decision.

34      First, the applicant maintains that disclosure of the requested documents cannot weaken the Commission’s negotiating position. As is apparent, inter alia, from their titles, those documents merely contain legal analysis of the legislation and do no more than give a view of what it is legally possible for the Commission to negotiate. Documents setting out the conditions and the legal limits of Investor-State Dispute Settlement (‘ISDS’) and the Investment Court System (‘ICS’) merely set out views on the law to be observed. In that regard, the applicant submits that the Commission’s negotiating position and negotiation margin are necessarily limited by the Treaties and by the rule of law. It follows that the conditions and the legal limits on investment arbitration provisions in international agreements do not fall within the discretion of the Commission. Consequently, according to the applicants, disclosure of documents describing those legal limits cannot weaken the Commission’s position or affect international relations, because the Commission cannot take positions and the European Union cannot negotiate treaties that go beyond those legal limits.

35      It is not clear from the applicant’s written pleadings whether it is claiming, by that argument, that the requested documents are incapable of falling within the scope of the exception concerning the protection of the public interest as regards international relations or whether it seeks to dispute the merits of the arguments put forward by the Commission in the contested decision in order to establish that disclosure of the requested documents would have undermined the interest protected by that exception.

36      In the event that the applicant seeks to dispute whether the exception relating to the protection of the public interest as regards international relations is applicable to the requested documents in the light of the subject matter concerned, it should be noted that, having regard to the content of those documents and the context in which they were drawn up, they are capable of falling within the scope of the exception in question (see, to that effect, judgment of 4 May 2012, In 't Veld v Council, T‑529/09, EU:T:2012:215, paragraph 28).

37      Those documents were drawn up as part of negotiations which were to lead to the conclusion of an international agreement. Accordingly, the analysis carried out by the Commission’s legal service is necessarily linked to the specific context of the envisaged international agreement (see, to that effect, judgment of 4 May 2012, In 't Veld v Council, T‑529/09, EU:T:2012:215, paragraph 29).

38      In the event that the applicant seeks, by its argument, to dispute the validity of the reasons put forward by the Commission, in the contested decision, to establish the risk of undermining the public interest as regards international relations, in the event of disclosure of the requested documents, it should be noted that the premiss that the documents requested can put forward only observations on the legal limits of the international agreements concerned and thus merely set out views on the law to be observed, since the negotiating position and margin of the European Union are necessarily limited by the Treaties and the rule of law, is misconceived.

39      ISDS and ICS fall within the framework of the European Union’s external relations. The competence of the European Union in the field of international relations and its capacity to conclude international agreements necessarily entail the power to submit to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions (Opinion 2/15 (Free Trade Agreement with Singapore) of 16 May 2017, EU:C:2017:376, paragraph 298).

40      In the same way, the competence of the European Union to conclude international agreements necessarily entails the power to submit to the decisions of a body which, whilst not formally a court, essentially performs judicial functions, such as the Dispute Settlement Body created within the framework of the World Trade Organisation (WTO) (Opinion 2/15 (Free Trade Agreement with Singapore), 16 May 2017, EU:C:2017:376, paragraph 299).

41      Further, the European Union’s competence in the field of international relations and its capacity to conclude international agreements are exercised within the framework of the principles and objectives of the European Union’s external action. Those principles and objectives are set out in Article 21(1) and (2) TEU.

42      Finally, according to Article 22(1) TEU, the strategic interests and objectives of the European Union are to be identified on the basis of the principles and objectives set out in Article 21 TEU.

43      It follows that the European Union has a wide discretion with regard to ISDS and ICS and the rules for their implementation, in accordance with the principles and objectives of the European Union’s external action. Contrary to what the applicant claims, the legal assessment contained in the requested documents cannot be confined to merely stating unbiased views on the law to be observed, but necessarily implies a thorough analysis of numerous legal, economic, political and strategic issues related to the choices that the European Union is required to make.

44      As the Commission explained in its Defence, without any objection, it may be said, by the applicant, ISDS has become controversial for both legal and political reasons. In response to that criticism, the Commission developed the new system known as ICS.

45      It is common ground that, at the time of the adoption of the contested decision, the Commission, as negotiator, had not yet adopted a definitive position on ISDS and ICS. Consequently, the requested documents were drafted by members of the Commission’s legal service as a contribution to an ongoing discussion within the Commission for the purpose of assessing the options as to what was legally possible in relation to ISDS and ICS, and how that could be implemented, in order to prepare the legal service’s advice to the Directorate-General for Trade (DG Trade).

46      It follows that the requested documents constitute material on the basis of which the Commission determines its position in the ongoing negotiations on ISDS and ICS. As stated in the contested decision, disclosure of those documents would reveal the ‘legal considerations underpinning the Commission negotiating proposals in ongoing negotiations’. Therefore, those documents relate to the specific content of those mechanisms in the envisaged agreements and their disclosure may reveal the strategic objectives pursued by the European Union in the negotiations.Giving access to advice on those analyses would inevitably weaken the European Union’s position in the negotiations on ISDS and ICS, and, consequently, is liable to harm the interests of the European Union in the field of international relations.

47      In that regard, it has previously been held that the disclosure of material connected with the objectives pursued by the European Union, in decisions, in particular when that material deals with the specific content of an envisaged agreement or the strategic objectives pursued by the European Union in negotiations, would damage the climate of confidence in the negotiations which were ongoing at the time the contested decision was adopted (see, to that effect, judgment of 4 May 2012, In ’t Veld v Council, T‑529/09, EU:T:2012:215, paragraphs 35, 36 and 39).

48      The Commission did not, therefore, err in considering, in the light of the context and the subject matter concerned, that disclosure of the requested documents would weaken its negotiating position and its negotiating margin and would therefore undermine the protection of the public interest as regards international relations.

49      Contrary to the applicant’s contention, it is not necessary that a document is binding on the Commission as a whole or represents its official position in negotiations with third countries for its disclosure to affect the Commission’s negotiating position and, more broadly, to be capable of coming within the scope of the protection accorded to international relations by the third indent of Article 4(1)(a) of Regulation No 1049/2001. Thus, it has previously been held that the advice of an institution’s legal service was capable of coming within the scope of that protection (judgment of 4 May 2012, In 't Veld v Council, T‑529/09, EU:T:2012:215, paragraphs 26 and 39).

50      Contrary to what the applicant also submits, the fact that the European Union has made public certain texts relating to the mechanisms contained in the draft agreements concerned does not detract from the sensitivity of the analysis contained in the requested documents.

51      Indeed, as is apparent from paragraphs 46 to 48 above, the risk of harm stems from the disclosure of the particular assessment of such material by the legal service and, therefore, the mere fact that the material was itself known to the public does not invalidate that consideration (judgment of 4 May 2012, In 't Veld v Council, T‑529/09, EU:T:2012:215, paragraph 38).

52      Second, the applicant argues that the Commission has failed to demonstrate how the disclosure of the requested documents would reveal the strategic objective of the European Union in the context of the negotiations.

53      As is apparent from paragraphs 38 to 48 above, the premiss on which the applicant’s argument is based, namely, that the compatibility of ISDS and ICS with EU law is merely a legal requirement, is misconceived, and the disclosure of the legal analysis contained in the requested documents may reveal aspects of the strategic objectives pursued by the European Union in the negotiations.

54      Third, according to the applicant, disclosure of the requested documents furthers rather than undermines the public interest as regards international relations. The public debate triggered by the disclosure of the documents would help to ensure that the results achieved are not unlawful, and not open to challenge at a later stage, and would allow the national authorities or the EU institutions to be fully informed on the need to obtain the opinion of the Court of Justice, pursuant to Article 218(11) TFEU.

55      As is apparent from paragraphs 38 to 48 above, disclosure of the legal analysis contained in the requested documents may reveal the strategic objectives pursued by the European Union in the negotiations.

56      In that regard, it should be noted that the Court has held that initiating and conducting negotiations in order to conclude an international agreement fall, in principle, within the domain of the executive, and that public participation in the procedure relating to the negotiation and the conclusion of an international agreement is necessarily restricted, in view of the legitimate interest in not revealing strategic elements of the negotiations (judgments of 4 May 2012, In ’t Veld v Council T‑529/09, EU:T:2012:215, paragraph 88, and of 19 March 2013, In ’t Veld v Commission, T‑301/10, EU:T:2013:135, paragraph 120).

57      It should also be pointed out that those negotiations do not in any way prejudice the public debate that may develop once the international agreement is signed, in the context of the ratification procedure (judgment of 19 March 2013, In 't Veld v Commission, T‑301/10, EU:T:2013:135, paragraph 181).

58      Finally, except where such powers are expressly conferred upon it, the Commission may not give guarantees concerning the compatibility of specific practices with the Treaty (see, by analogy, judgment of 15 December 1995, Bosman, C‑415/93, EU:C:1995:463, paragraph 136) and its legal service cannot have the role of giving advice to other institutions, Member States or the general public.

59      Fourth, the applicant submits that to accept that the requested documents should not be disclosed as long as there are ‘ongoing trade and investment negotiations with other third countries’ would allow the Commission to rely on the exception for the protection of the public interest as regards international relations indefinitely, and therefore amounts to an infringement of the requirement to show that there is a real and foreseeable risk of the public interest as regards international relations being undermined.

60      In that regard, it is not in dispute, as is, moreover, apparent from the Defence, that, at the time of the adoption of the contested decision, the issue of ISDS and ICS was under negotiation, in addition to the Transatlantic Trade and Investment Partnership, already referred to in the contested decision, in the Comprehensive Economic and Trade Agreement and in the trade and investment negotiations with Japan and Vietnam. The contested decision therefore does not refer to hypothetical or indeterminate negotiations, but to specific negotiations.

61      It is not clear whether, in the context of the argument referred to in paragraph 59 above, the applicant does not also plead an infringement ratione temporis of the exception in question. It disputes the ‘in perpetuum’ effect of the reasons stated by the Commission and considers that accepting the Commission’s analysis would result in applying the exception relating to the protection of international relations for an undefined and disproportionate period.

62      However, if that argument were well founded, it would constitute an infringement of Article 4(7) of Regulation No 1049/2001, and not of the third indent of Article 4(1)(a) of that regulation.

63      The applicant seems to confuse, in that regard, the application ratione temporis of the exception at issue with the conditions for applicability of that exception. Although the specific examination of the exception referred to in the third indent of Article 4(1)(a) of Regulation No 1049/2001 is indeed an essential condition for deciding on the application ratione temporis of the exception at issue, that provision does not concern the temporal applicability of that exception, as specified in Article 4(7) of that regulation, but the conditions for its application.

64      In that context, it should be recalled that an error made in designating the text applicable cannot entail that the ground of objection relied on will be held to be inadmissible, provided that the purpose of the ground of objection and a summary of it are sufficiently clearly stated in the application. Nor, therefore, is an applicant obliged expressly to state on which particular rule of law his ground of objection is based, provided that his line of argument is sufficiently clear for the opposing party and the EU Courts to be able to identify the rule without difficulty (see judgment of 28 May 2013, Trabelsi and Others v Council, T‑187/11, EU:T:2013:273, paragraph 63 and the case-law cited).

65      Consequently, and despite the incorrect reference to the third indent of Article 4(1)(a) of Regulation No 1049/2001, the argument referred to in paragraph 59 above can be understood as meaning that the applicant also sought to claim that, in the light of the indefinite effect of the reasons stated by the Commission, the contested decision infringed the first sentence of Article 4(7) of Regulation No 1049/2001.

66      In accordance with the first sentence of Article 4(7) of Regulation No 1049/2001, the exception provided for in the third indent of Article 4(1)(a) of that regulation is to apply only for the period during which protection is justified on the basis of the content of the requested documents and for a maximum period of 30 years.

67      However, it is not apparent from the documents before the Court that the Commission intended to rely on that exception beyond the conclusion of the trade agreements under negotiation or, in any event, as it states, moreover, in paragraph 33 of the Defence, after such time as the Court of Justice of the European Union may give a ruling on these issues. Therefore, the Commission placed a time limit on the application of that exception. In addition, a person may make a fresh application for access relating to documents to which he has previously been denied access. Such an application requires the institution concerned to examine whether the earlier refusal of access remains justified in the light of a change in the legal or factual situation which has taken place in the meantime (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 57, and order of 8 October 2012, ClientEarth v Council, T‑62/12, not published, EU:T:2012:525, paragraph 27). It is therefore misconceived to refer to an indefinite application, on the part of the Commission, of Article 4 of Regulation No 1049/2001.

68      Fifth, the applicant disputes the assertion in paragraph 33 of the Defence. The applicant submits that to make the disclosure of the requested documents dependent on the decision of the Court of Justice of the European Union on the international agreement concerned would increase disproportionately the scope of the exception relating to the protection of the public interest as regards international relations, and in fact introduce a new exception. According to the applicant, it is unacceptable that acts of the institutions cannot be considered be to of a legal nature until the Court of Justice has delivered a final judgment on a legal question.

69      The applicant, in that regard, misconstrues the Commission’s argument. Although it is true that in paragraph 33 of the Defence the Commission states that the international relations exception is ‘invoked [...] as long as the position of the Court of Justice [of the European Union] is not known’, the Commission does not intend to make this a condition for the applicability of the third indent of Article 4(1)(a) of Regulation No 1049/2001. On the contrary, the Commission refers to that event since it is capable, in the view of the Commission, of putting an end to the application of the exception. The applicant once again confuses the application ratione temporis of the exception at issue stemming from the first sentence of Article 4(7) of Regulation No 1049/2001 with the conditions for applicability of that exception, as defined in the third indent of Article 4(1)(a) of Regulation No 1049/2001. For the reasons already stated in paragraph 67 above, the applicant’s argument must be rejected.

70      Sixth, the applicant argues that the protection of the legal service’s capacity for internal legal discussion, put forward by the Commission in paragraph 25 of the Defence, is irrelevant to the protection of the public interest as regards international relations, since that exception does not cover that capacity for internal legal discussion.

71      The applicant’s reading of paragraph 25 of the Defence is incorrect. Although the Commission refers to the legal service’s ‘internal space to think’, it does so not in order to claim protection of that space in the context of international relations, but to highlight the fact that the information contained in the requested documents is not public information.

72      Seventh, the applicant argues that the application of Regulation No 1049/2001 cannot be made conditional on the Commission’s trade partners having equal transparency obligations.

73      In the present case, the documents requested are, as is apparent from paragraph 46 above, the material on the basis of which the Commission determines its position in the ongoing negotiations on ISDS and ICS.

74      The Court has held that in the context of international negotiations, the positions taken by the European Union are, by definition, subject to change depending on the course of those negotiations, and on concessions and compromises made in that context by the various stakeholders. The formulation of negotiating positions may involve a number of tactical considerations on the part of the negotiators, including the European Union itself. In that context, it is possible that the disclosure by the European Union, to the public, of its own negotiating positions, even though the negotiating positions of the other parties remain secret, could, in practice, have a negative effect on the negotiating position of the European Union (judgment of 19 March 2013, In 't Veld v Commission, T‑301/10, EU:T:2013:135, paragraph 125).

75      It follows from all the foregoing considerations that the applicant has failed, on the basis of the arguments it puts forward in support of its first plea, to call into question the Commission’s assessment that the disclosure of the requested documents would undermine the protection of the public interest as regards international relations.

76      Consequently, the present plea in law must be rejected in its entirety.

77      As is apparent from the contested decision, the Commission relied at the same time on the exceptions based on the protection of the public interest as regards international relations, the protection of legal advice and the protection of the decision-making process.

78      There is no need to examine the merits of the second, third and fourth pleas in law, since, in order for the contested decision to be well founded in law, it is sufficient if one of the exceptions put forward by the Commission in order to refuse access to the requested documents was justified (see, to that effect, judgment of 7 October 2015, Jurašinović v Council, T‑658/14, not published, EU:T:2015:766, paragraph 38).

 Fifth plea in law: infringement of Article 4(6) of Regulation No 1049/2001

79      The applicant maintains that the Commission misapplied Article 4(6) of Regulation No 1049/2001 in that it has not, or at least not to the required legal standard, examined the documents requested or granted wider access to them.

80      The Commission contends that the applicant’s submissions must be rejected.

81      In accordance with Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released.

82      According to settled case-law, examination of partial access to a document of the European Union institutions must be carried out in the light of the principle of proportionality (judgments of 6 December 2001, Council v Hautala, C‑353/99 P, EU:C:2001:661, paragraphs 27 and 28, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 83).

83      It is clear from the very wording of Article 4(6) of Regulation No 1049/2001 that an institution is required to consider whether it is appropriate to grant partial access to requested documents and to confine any refusal solely to information covered by the relevant exceptions. The institution must grant such partial access if the aim pursued by that institution, in refusing access to a document, could be achieved were the institution merely to redact the passages which might undermine the public interest to be protected (see, to that effect, judgment of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 84 and the case-law cited).

84      In the present case, the Commission granted partial access to the documents referred to in paragraph 4 above. It refused access to the entire document referred to in paragraph 5 above.

85      It is therefore clear that, in the contested decision, and as it indicated in that decision, the Commission examined the possibility of granting the applicant partial access to the requested documents.

86      Nevertheless, it is necessary to consider whether the refusal to grant full access to the document referred to in paragraph 5 above and the partial refusal of access to other requested documents are justified in the light of the principle of proportionality.

87      In that regard, with respect to the exception set out in the third indent of Article 4(1)(a) of Regulation No 1049/2001, it should be borne in mind, as is apparent from paragraph 23 above, that the Commission has a wide discretion when assessing whether the disclosure of a document could undermine the public interest as regards international relations, taking into account the sensitive and fundamental nature of the protected interest.

88      It is not clear from the documents produced by the Commission before the Court (see paragraph 14 above) that it would have been possible to give wider access to the requested documents without that approach involving disclosure of the content of the parts of the documents in respect of which refusal of access was justified and, inter alia, the strategic objectives pursued by the European Union in the negotiation.

89      Moreover, the Courts of the European Union have previously held that, in such a case, the defendant institution, in this case the Commission, was not required to identify, in the statement of reasons for the contested act, the sensitive content of the documents at issue that cannot be revealed by disclosure, where such a step would entail revealing information the protection of which was covered by the exception relied on, relating to the protection of the public interest as regards international relations (see, to that effect, judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 82, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 106).

90      It follows that the fifth plea in law must be rejected and, accordingly, the action must be dismissed in its entirety.

 Costs

91      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders ClientEarth to bear its own costs and to pay those incurred by the European Commission.

Delivered in open court in Luxembourg on 11 July 2018.

RegistrarPresident

*      Language of the case: English.

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