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

ORDER OF THE GENERAL COURT (Sixth Chamber)

29 July 2021 (*)

(Access to documents – Regulation (EC) No 1049/2001 – Aarhus Convention – Regulation (EC) No 1367/2006 – Documents held by the Commission concerning the control system established for ensuring compliance with the rules of the common fisheries policy – Regulation (EC) No 1224/2009 – Implied refusal of access – Express decision adopted after the action was brought – No need to adjudicate)

In Case T‑52/21,

ClientEarth AISBL, established in Brussels (Belgium), represented by O.W. Brouwer, lawyer,

applicant,

v

European Commission, represented by A. Spina and C. Ehrbar, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment of the Commission’s implied decision of 16 November 2020 rejecting the confirmatory application for access to several documents concerning the control system established for ensuring compliance with the rules of the common fisheries policy,

THE GENERAL COURT (Sixth Chamber),

composed of A. Marcoulli, President, S. Frimodt Nielsen (Rapporteur) and R. Norkus, Judges,

Registrar: E. Coulon,

makes the following

Order

 Background to the dispute

1        The applicant, ClientEarth AISBL, is an international non-profit making association (AISBL) dedicated to safeguarding the environment and human health in the public interest.

2        On 15 July 2020, 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) and Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13), the applicant applied to the European Commission to grant it access to the following three types of documents:

–        the individual report of the joint mission of the Commission’s Directorate-General (DG) for Health and Food Safety and the DG for Maritime Affairs and Fisheries on traceability and labelling of fishery products in respect of France;

–        documents related to catch registration and data validation systems in France and Denmark, more specifically the finalised audit reports and decisions establishing action plans regarding compliance with certain requirements laid down in Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009 L 343, p. 1);

–        documents containing basic and factual information on the existence of EU Pilot procedures and infringement proceedings relating to the implementation of Regulation No 1224/2009.

3        On 16 July 2020, the Commission replied to the applicant by email acknowledging receipt of the application for access and stating that it would handle that application within 15 working days, expiring on 7 August 2020.

4        On 3 August 2020, the Commission informed the applicant that, under Article 7(3) of Regulation No 1049/2001, it was extending the period of 15 working days until 28 August 2020 on the ground that ‘[its] application concern[ed] a very long document [or] a very large number of documents’.

5        On 28 August 2020 the Commission sent an email to the applicant in which it stated that the application was being processed and that the applicant would receive a reply ‘in the course of next week’.

6        On 4 September 2020, as no reply was received, the applicant asked the Commission when it could expect to receive a reply to its application for access to the documents referred to in paragraph 2 above. On the same day, the Commission stated that the reply was being finalised and that the applicant would receive it, once again, ‘in the course of next week’.

7        On 11 September 2020, 10 working days after the extended period had expired, the Commission sent the applicant a partly negative reply to its application for access. After identifying 17 relevant documents, it, first, granted access to the individual report on traceability and labelling of fish in France and, second, granted partial access to a list of closed EU Pilot procedures by redacting the ongoing procedures. However, it refused access to all the audit reports.

8        On 2 October 2020, the applicant sent the Commission a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001, limiting the scope of its application for access to part of the documents to which access had not yet been granted. On the same day, it received an automatic reply to the effect that the Commission would reply within 15 working days.

9        On 27 October 2020, having received no notice of an extension of the deadline, the applicant informed the Commission by email that the period of 15 working days set following the submission of its confirmatory application had now expired and asked the Commission when it would receive a reply. On the same day, the Commission replied to the applicant that it had sent the applicant an email on 22 October 2020, which the applicant had not received and by which the Commission had extended by 15 working days, that is to say until 16 November 2020, the period for processing its confirmatory application, pursuant to Article 8(2) of Regulation No 1049/2001. In that email of 22 October 2020, the Commission explained to the applicant that it had ‘not yet been able to gather all the elements needed to carry out a full analysis of [its] request and to take a final decision’.

10      On 17 November 2020, the applicant sent an email to the Commission informing it that the deadline for responding to its confirmatory application had expired. On the same day, the Commission replied by email that it was still in the process of analysing that confirmatory application and that it was doing its utmost to adopt a final decision as soon as possible.

11      On 26 November 2020, the applicant asked the Commission when it could expect to receive a reply, reminding it that eight working days had passed since the deadline, itself extended, had expired. On the same day, the Commission responded that it was still in the process of analysing the documents referred to in the confirmatory application. It stated that that process involved the participation of the DG for Maritime Affairs and Fisheries and its Legal Service. According to the Commission, ‘due to the various end-of-year assignments in which the relevant services [were] involved’, that process would last longer than usual. However, the Commission stated that it would answer ‘as soon as possible’.

12      On 21 December 2020, having heard nothing further from the Commission, the applicant sent a letter to the Commission in which it notified the Commission that it would initiate court proceedings due to the continuous postponement of a reply to its confirmatory application.

13      On 25 January 2021, when the present action was brought, the applicant had not received any reply to its letter of 21 December 2020, nor to its confirmatory application.

 Procedure before the General Court, forms of order sought by the parties and facts subsequent to the bringing of the dispute

14      By application lodged at the Court Registry on 25 January 2021, the applicant brought the present action.

15      In its application, the applicant claims that the Court should:

–        annul the implied decision of 16 November 2020 by which the Commission rejected its confirmatory application submitted pursuant to Article 7(2) of Regulation No 1049/2001;

–        order the Commission to pay the costs.

16      By document lodged at the Court Registry on 9 April 2021, the Commission states that, on 7 April 2021, it adopted Decision C(2021) 4348 final concerning the applicant’s application for access and that it notified the applicant of that decision on 8 April 2021. That decision granted broader partial access to one of the documents to which partial access had initially been granted in the reply of 11 September 2020. As to the remainder, it confirmed the refusal of access to all other documents falling within the scope of the application for access and set out in paragraph 2 above.

17      In view of the adoption of an express confirmatory decision, the Commission contends that the Court should:

–        declare that the present action has become devoid of purpose and that there is no longer any need to adjudicate on it;

–        order each party to bear its own costs.

18      By document lodged at the Court Registry on 29 April 2021, the applicant submitted its observations on the Commission’s request for a declaration that there is no need to adjudicate. It states, in its observations, that it is not opposed to that request, while reserving the right to challenge the express decision before the General Court or the European Ombudsman. Furthermore, having regard to the manner in which the Commission dealt with the application for access submitted by the applicant under Regulations Nos 1049/2001 and 1367/2006, it requests that the Commission be ordered to pay all the costs.

19      By document lodged at the Court Registry on 25 May 2021, in the context of a measure of organisation of procedure, the Commission submitted observations on the applicant’s request that it be ordered to pay all the costs. In its observations, the Commission disputes the applicant’s arguments in that regard and repeats its request that each party bear its own costs.

 Law

20      Under Article 130(2) and (7) of the Rules of Procedure of the General Court, on application by a party, the Court may declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.

21      In the present case, as the Commission has applied for a declaration that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, the Court, finding that it has sufficient information from the documents in the case file, has decided to give a decision on that application, without taking further steps in the proceedings.

22      According to settled case-law, the requirement that the action must retain its purpose is a prerequisite in order for the Court to exercise its powers, and requires the existence of a concrete advantage that the applicant may procure from the final judgment (see order of 23 February 2021, Frutas Tono v EUIPO – Agrocazalla (Marién), T‑587/19, not published, EU:T:2021:107, paragraph 34 and the case-law cited).

23      In the present case, it must be held that the Commission adopted an express decision on 7 April 2021, that is to say, after the action had been brought. It is common ground between the parties that that decision was taken in response to the confirmatory application made by the applicant on 2 October 2020 pursuant to Article 7(2) of Regulation No 1049/2001, and the applicant also reserves rights against that decision.

24      It should be noted that, where an implied decision refusing access has been withdrawn by the effect of an express decision taken subsequently, there is no longer any need to adjudicate on the action in so far as it is directed against that implied decision (judgment of 2 July 2015, Typke v Commission, T‑214/13, EU:T:2015:448, paragraph 36; see also, to that effect, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraphs 88 and 89).

25      Consequently, the adoption of the express decision of 7 April 2021 had the effect of withdrawing the implied decision of refusal and therefore removed the subject matter of the action, which sought annulment of that implied decision.

26      Moreover, it should be noted that the applicant does not oppose the application for a declaration that there is no need to adjudicate.

27      In the light of the foregoing, it must be held that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.

 Costs

28      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.

29      In the present case, it is common ground between the parties that the extended period for replying to the confirmatory application expired on 16 November 2020, that, on the following day, the applicant informed the Commission of the expiry of that period and that the Commission replied to it on the same day that it was still in the process of analysing the confirmatory application and that it was making every effort to adopt a final decision as soon as possible. Nor is it disputed by the parties that it was not until 7 April 2021 that the Commission adopted an express decision in response to the applicant’s confirmatory application, that is to say, after the present action was brought on 25 January 2021, and almost five months after expiry of the period which the Commission had itself extended pursuant to Article 8(2) of Regulation No 1049/2001.

30      It must be held that it was the Commission’s failure to reply within the time limit to the applicant’s confirmatory application which led the applicant to bring the present action. It is therefore justified on the basis of its conduct that the Commission be ordered to pay the costs.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby orders:

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

2.      The European Commission shall pay the costs.

Luxembourg, 29 July 2021.

*      Language of the case: English.

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