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

ORDER OF THE GENERAL COURT (Third Chamber)

27 June 2019 (*)

(Law governing the institutions — Documents available to the public on the internet relating to closed General Court and Civil Service Tribunal cases — Request for anonymity ex post — Failure of the Court of Justice of the European Union to respond to the request — Action for failure to act — Position adopted in the course of the proceedings — Action which has become devoid of purpose — No need to adjudicate)

In Case T‑1/19,

CJ, represented by V. Kolias, lawyer,

applicant,

v

Court of Justice of the European Union, represented by J. Inghelram, Á. Almendros Manzano and V. Hanley-Emilsson, acting as Agents,

defendant,

ACTION under Article 265 TFEU seeking a declaration that the Court of Justice of the European Union unlawfully failed to grant the applicant anonymity, ex post, as regards publicly available documents relating to closed General Court and Civil Service Tribunal cases or, in the alternative, to ensure that versions bearing his name (‘nominal versions’) are not accessible to internet search engine providers,

THE GENERAL COURT (Third Chamber),

composed of S. Frimodt Nielsen (Rapporteur), President, V. Kreuschitz and N. Półtorak, Judges,

Registrar: E. Coulon,

makes the following

Order

 Procedure and forms of order sought by the parties

1        By application lodged at the General Court Registry on 7 January 2019, the applicant, CJ, brought an action under Article 265 TFEU seeking a declaration that the Court of Justice of the European Union unlawfully failed to grant him anonymity, ex post, as regards publicly available documents relating to closed General Court and Civil Service Tribunal cases or, in the alternative, to ensure that nominal versions are not accessible to internet search engine providers. The applicant also seeks an order for costs against the Court of Justice of the European Union.

2        In order to establish that failure, the applicant claims, first, that by email of 6 September 2018 he formally asked the Court of Justice of the European Union to grant him anonymity, ex post, as regards the cases in question or, in the alternative, to ensure that nominal versions are not accessible to internet search engine providers and, second, that by 6 November 2018 that institution had not yet defined its position on that request.

3        On 6 May 2019, in reply to a measure of organisation of procedure, the applicant informed the Court that, 4 days after bringing the action, namely on 11 January 2019, the Court of Justice of the European Union responded by email to the request submitted in the email of 6 September 2018.

4        The applicant also provided a copy of the email of 11 January 2019.

5        Following that correspondence, on a proposal from the Judge-Rapporteur, the Court asked the parties whether, in the light of the response given by the Court of Justice of the European Union in its email of 11 January 2019, the action still had a purpose under Article 131 of the Rules of Procedure of the General Court.

6        On 20 May 2019, the applicant replied that nothing prevented the Court from examining the subject matter of his action, namely the lawfulness of the refusal, implicit as of 6 November, to comply with the request submitted on 6 September 2018, which, he considered, remained an unresolved issue.

7        On 27 May 2019, the Court of Justice of the European Union claimed that its email of 11 January 2019 had put an end to the failure to act alleged by the applicant, and as a result it was no longer necessary to adjudicate on the action.

 Law

8        Under Article 131 of the Rules of Procedure, if the General Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order.

9        In that regard it must be pointed out that, even if the legal remedy provided for in Article 265 TFEU may be used against the Court of Justice of the European Union, as an institution, it seeks a declaration, by the Courts of the European Union, that the Court of Justice of the European Union, as an institution, unlawfully failed to act and did not remedy that failure. The effect of that declaration, under Article 266 TFEU, is that the defendant institution is required to take the necessary measures to comply with the judgment of the Court of Justice or the General Court without prejudice to any actions to establish non-contractual liability to which the aforesaid declaration may give rise (see, by analogy, order of 15 March 2004, Institouto N. Avgerinopoulou and Others v Commission, T‑66/02, EU:T:2004:74, paragraph 31 and the case-law cited).

10      Similarly, the legal remedy set out in Article 265 TFEU is based on the premiss that unlawful inaction on the part of an institution makes it possible, particularly for natural or legal persons, to bring an action before the Courts of the European Union seeking a ruling that the failure to act is contrary to the FEU Treaty. A failure to act, for the purposes of Article 265 TFEU, means a failure to take a decision or to define a position, and not the adoption of a measure different from that sought or considered necessary by the applicant (see judgment of 19 November 2013, Commission v Council, C‑196/12, EU:C:2013:753, paragraph 22 and the case-law cited).

11      However, where the act whose absence constitutes the subject matter of the proceedings was adopted after the action was brought but before judgment, a declaration by the EU court to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 266 TFEU. It follows that, in such a case, the action has become devoid of purpose, with the result that there is no longer any need for the Court to give a decision (see, by analogy, order of 15 March 2004, Institouto N. Avgerinopoulou and Others v Commission, T‑66/02, EU:T:2004:74, paragraph 31 and the case-law cited).

12      In the present case, it should be noted that, in the email of 6 September 2018, which is presented in the application as the request to act submitted before the action for failure to act was brought, the applicant asked the Court of Justice of the European Union to grant him, ex post, anonymity as regards publicly available documents relating to closed General Court and Civil Service Tribunal cases or, in the alternative, to ensure that nominal versions are not accessible to internet search engine providers. In support of that request, which followed a previous request submitted by the applicant by email on 6 January 2017 and refused by the defendant institution by email on 20 April 2017, the applicant relied, in particular, on a press release of the Court of Justice of the European Union of 28 June 2018 regarding the future anonymisation of the names of natural persons involved in any preliminary ruling procedures brought after 1 July 2018, and on a new legal basis — Article 8(2) of the Charter of Fundamental Rights of the European Union, concerning the right to rectification of personal data.

13      After the present action was lodged on 7 January 2019, the Court of Justice of the European Union, in its email sent to the applicant on 11 January 2019, set out the reasons why it rejected the new request for anonymity ex post or, in the alternative, for nominal versions to be made inaccessible to internet search engine providers. It is clear from that email that, according to the Court of Justice of the European Union, there is no valid reason to alter the reasons set out in its previous email of 20 April 2017, according to which the applicant had no absolute right justifying derogation from the general principle that judicial decisions are to be published. Rather, in order to give effect to a right to anonymity, that principle must be weighed against the various reasons justifying anonymity relied on by the applicant. In the present case, after examining the points of law and fact put forward by the applicant in his new request of 6 September 2018, the Court of Justice of the European Union states that it came to the conclusion that those various points and facts could not be regarded as new factors. That is clear both from the very wording of the press release invoked by the applicant, which applies temporally and substantively only to the cases referred to in it, and from the fact that Article 8 of the Charter of Fundamental Rights had already been mentioned by the applicant in his previous email of 6 January 2017 and taken into account by the Court of Justice of the European Union in its response of 20 April 2017.

14      It is thus established that the Court of Justice of the European Union did, in its email of 11 January 2019, define its position on the applicant’s request, with the result that the present action has become devoid of purpose. The fact that the applicant is not satisfied by the position adopted by the institution concerned is, in that regard, irrelevant. According to the case-law cited in paragraph 10 above, Article 265 TFEU refers to failure to act in the sense of failure to take a decision or to define a position, not the adoption of a measure different from that desired or considered necessary by the applicant.

15      In those circumstances, it must be found that there is no longer any need to adjudicate on this action for failure to act.

 Costs

16      Where a case does not proceed to judgment, Article 137 of the Rules of Procedure provides that the costs are to be in the discretion of the Court.

17      In the light of the circumstances of the present case, the Court considers that the Court of Justice of the European Union must be ordered to pay the costs.

On those grounds,

THE GENERAL COURT (Third Chamber),

hereby orders:

1.      There is no need to adjudicate on the action.

2.      The Court of Justice of the European Union shall pay the costs.

Luxembourg, 27 June 2019.

*      Language of the case: English.

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