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

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

28 September 2022 (*)

(Access to documents – Regulation (EC) No 1049/2001 – Document relating to a decision refusing a third party full access to trilogue tables relating to the proposal for a regulation of the Parliament and of the Council on Europol and repealing Decisions 2009/371/JHA and 2005/681/JHA – Refusal to grant access – Second indent of Article 4(2) of Regulation No 1049/2001 – Exception for the protection of court proceedings and legal advice)

In Case T‑421/17 RENV,

Päivi Leino-Sandberg, residing in Helsinki (Finland), represented by O. Brouwer, B. Verheijen and S. Schubert, lawyers,

applicant,

supported by

Republic of Finland, represented by M. Pere, acting as Agent,

and by

Kingdom of Sweden, represented by C. Meyer-Seitz, H. Shev, H. Eklinder, A. Runeskjöld, M. Salborn Hodgson and R. Shahsavan Eriksson, acting as Agents,

interveners,

v

European Parliament, represented by N. Görlitz and J.‑C. Puffer, acting as Agents,

defendant,

THE GENERAL COURT (Ninth Chamber),

composed, at the time of the deliberations, of M.J. Costeira, President, T. Perišin (Rapporteur) and P. Zilgalvis, Judges,

Registrar: E. Coulon,

having regard to the judgment of the Court of Justice of 21 January 2021, Leino-Sandberg v Parliament (C‑761/18 P, EU:C:2021:52),

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1        By her action based on Article 263 TFEU, the applicant, Ms Päivi Leino-Sandberg, seeks annulment of Decision A(2016) 15112 of the European Parliament of 3 April 2017 refusing to grant her access to Decision A(2015) 4931 of the Parliament of 8 July 2015 addressed to Mr Emilio De Capitani (‘the contested decision’).

 Background to the dispute

2        The applicant, a Professor of International and European Law at the University of Eastern Finland, submitted to the European Parliament a request for access to documents of that institution in the context of two research projects which she is leading relating to transparency in trilogues. In that context, she specifically requested to have access to Decision A(2015) 4931 of the European Parliament of 8 July 2015 refusing to grant Mr Emilio De Capitani full access to documents LIBE‑2013‑0091‑02 and LIBE‑2013‑0091‑03 (‘Decision A(2015) 4931’ or ‘the requested document’). By that decision, the Parliament refused Mr De Capitani access to the fourth column of two tables drawn up in the context of the trilogues that were ongoing at the time.

3        Decision A(2015) 4931 was the subject of an action for annulment brought by Mr De Capitani, which was lodged at the Court Registry on 18 September 2015 and has since given rise to the judgment of 22 March 2018, De Capitani v Parliament (T‑540/15, EU:T:2018:167). In the meantime, Mr De Capitani has published that document by uploading it onto the following website: www.free-group.eu/2015/07/12/eus-laws-are-like-sausages-you-should-never-watch-them-being-made/.

4        On 7 December 2016, the applicant requested access to Decision A(2015) 4931.

5        By letter of 23 January 2017, the Parliament replied to the applicant’s request and refused to grant access to the requested document. In that decision, the Parliament stated that there was no need for its disclosure, pursuant to the second indent of Article 4(2) 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 (OJ 2001 L 145, p. 43), under which the institutions are to refuse access to a document where disclosure would undermine the protection of court proceedings, unless there is an overriding public interest justifying disclosure of the document concerned.

6        On 17 February 2017, the applicant made a confirmatory application.

7        By Decision A(2016) 15112 of 3 April 2017, after extending the period for replying by 15 working days, the Parliament refused the applicant access to the requested document on the ground that, as that document was being contested by its addressee before the General Court and the judicial proceedings were still in progress, its disclosure would undermine the protection of court proceedings provided for by the second indent of Article 4(2) of Regulation No 1049/2001. The Parliament found that the public interests relied on by the applicant did not justify disclosure of the requested document.

8        By judgment of 22 March 2018, De Capitani v Parliament (T‑540/15, EU:T:2018:167), the Court annulled Decision A(2015) 4931.

I.      Forms of order sought

9        The applicant, supported by the Republic of Finland and the Kingdom of Sweden, claims that the Court should:

–        annul the contested decision;

–        order the Parliament to pay the costs.

10      The Parliament contends that the Court should:

–        dismiss the action as inadmissible;

–        in the alternative, dismiss the action as unfounded;

–        order the applicant to pay the costs.

II.    Law

 Admissibility

11      The Parliament contends that the action is inadmissible. In its view, the contested decision was notified to the applicant on 18 April 2017 and the period for bringing an action therefore expired on 28 June 2017. Since the application was lodged on 6 July 2017, it is, the Parliament submits, out of time and should therefore be dismissed as inadmissible.

12      The applicant, supported by the Kingdom of Sweden and the Republic of Finland, disputes that argument and submits that the plea of inadmissibility raised by the Parliament must be rejected.

13      Under the sixth paragraph of Article 263 TFEU, an action for annulment must be instituted within two months of the publication of the contested measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. In accordance with Article 60 of the Rules of Procedure, that period is to be extended on account of distance by a single period of 10 days.

14      In the present case, in the absence of publication of the contested decision, the period for bringing proceedings runs from the date of notification of the contested decision, a fact which is not disputed by the applicant.

15      Furthermore, it is apparent from the case-law that it is for the party who is seeking to rely on the lateness of an application to demonstrate from which date the period for the filing of that application should run (see judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 70 and the case-law cited).

16      In the present case, it is common ground that the Parliament sent the contested decision to the applicant by registered letter. In such a situation, the date of service which sets the period running is the date on which the addressee acknowledged receipt of the registered letter addressed to him or her (judgment of 24 November 2010, Marcuccio v Commission, T‑9/09 P, EU:T:2010:477, paragraph 75).

17      The Parliament acknowledges that it is not in a position to submit the acknowledgement of receipt signed by the applicant. Admittedly, the Parliament produces an email sent by an employee of the postal services which contains a table showing that the contested decision was distributed on 18 April 2017. However, it must be stated that the mere indication of that date in the table in question is not sufficient to demonstrate that that decision was notified to the applicant on that date.

18      Furthermore, it should be noted that the applicant has produced, first, an email of 26 April 2017 which she sent to her lawyers and in which she stated that she had ‘finally got a reply from the [European Parliament] to [her] request [for access to] their decision in the De Capitani matter’. Second, she refers to a copy of the envelope in which she had received the contested decision and on which a post office stamp dated 26 April 2017 appears. The applicant rightly states that those factors are capable of indicating that the contested decision was notified to her on 26 April 2017, without the Parliament having been able to call that assertion into question.

19      It follows that the Parliament has not shown that the period for bringing an action began to run on 18 April 2017 and that the action was therefore brought out of time.

20      In those circumstances, the plea of inadmissibility raised by the Parliament must be rejected.

 Substance

21      In support of the action, the applicant raises three pleas in law. The first plea alleges an error of law, a manifest error of assessment and failure to state reasons concerning the applicability and correct application of the exception for the protection of court proceedings referred to in the second indent of Article 4(2) of Regulation No 1049/2001. The second plea alleges an error of law, a manifest error of assessment and failure to state reasons in the application of the criterion of overriding public interest laid down in the last clause of Article 4(2) of Regulation No 1049/2001. The third plea alleges an error of law, a manifest error of assessment and failure to state reasons in the application of Article 4(6) of Regulation No 1049/2001 on partial disclosure.

 Preliminary observations

22      As a preliminary point, it should be borne in mind that the right of access to documents is a fundamental right. Under Article 15(3) TFEU and Article 42 of the Charter of Fundamental Rights of the European Union, any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the European Union’s institutions, bodies, offices and agencies, subject to the principles and conditions to be defined in accordance with Article 15(3) TFEU. In particular, under the second subparagraph of that latter provision, those principles and conditions are to be determined by means of regulations by the Parliament and the Council of the European Union, acting in accordance with the ordinary legislative procedure.

23      In accordance with its recital 1, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU of marking 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 stated in recital 2 of that regulation, the right of public access to documents of the institutions is related to the democratic nature of those institutions (judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 72).

24      To that end, Regulation No 1049/2001 is intended, as is apparent from its recital 4 and from its Article 1, to give the fullest possible effect to the right of public access to documents of the institutions (judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 73).

25      It is true that that right is nonetheless subject to certain limitations based on grounds of public or private interest. More specifically, and in accordance with its recital 11, Regulation No 1049/2001 provides, in its Article 4, for a number of exceptions enabling the institutions to refuse access to a document in the case where its disclosure would undermine the protection of one of the interests protected by that article (judgment of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 29).

26      However, since such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 75).

27      Thus, the mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that exception (judgments of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 51, and of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 69).

28      First, 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 effectively undermine the interest protected by the exception, among those provided for in Article 4 of Regulation No 1049/2001, upon which it is relying. Moreover, the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 76 and the case-law cited).

29      Second, if the institution applies one of the exceptions provided for in Article 4 of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, in particular, the public interest in that document being made accessible, having regard to the advantages of increased openness, as noted in recital 2 of Regulation No 1049/2001, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (judgment of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 53).

30      Thus, the entire examination required for dealing with an application for access to documents must, in principle, not only be concrete and individual in character and concern the content of each document, but must also be apparent from the reasons for the decision refusing access to the documents requested (see judgments of 22 May 2012, Internationaler Hilfsfonds v Commission, T‑300/10, EU:T:2012:247, paragraph 91 and the case-law cited, and of 25 September 2018, Psara and Others v Parliament, T‑639/15 to T‑666/15 and T‑94/16, EU:T:2018:602, paragraphs 103 and 104 and the case-law cited). Such a statement of reasons must concern all the exceptions referred to in Article 4(1) to (3) of Regulation No 1049/2001 on which that decision to refuse access is based (see judgment of 19 November 2014, Ntouvas v ECDC, T‑223/12, not published, EU:T:2014:975, paragraph 32 and the case-law cited).

 The first plea in law, alleging an error of law, a manifest error of assessment and failure to state reasons concerning the applicability and correct application of the exception for the protection of court proceedings referred to in the second indent of Article 4(2) of Regulation No 1049/2001

31      The first plea, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001, is divided into two parts. By the first part, the applicant, supported by the Republic of Finland and the Kingdom of Sweden, submits that the contested decision misinterprets and misapplies that provision and is vitiated by a manifest failure to state reasons, in that that decision concludes that the exception referred to therein is applicable to the requested document. By the second part, the applicant, supported by the Republic of Finland and the Kingdom of Sweden, claims that, even if that provision were applicable to the requested document, the contested decision makes a manifestly incorrect interpretation and application of the exception referred to therein and is vitiated by a lack of clear reasoning, in that it concludes that disclosure of the requested document would specifically and actually undermine the protection of court proceedings.

32      By the first part of the first plea, the applicant claims, in essence, that the Parliament erred in taking the view that the requested document comes within the scope of the exception referred to in the second indent of Article 4(2) of Regulation No 1049/2001.

33      The applicant submits that, contrary to what the Parliament claims in the contested decision, the requested document cannot be regarded as coming within the category of documents covered by the judgments of 15 September 2016, Philip Morris v Commission (T‑796/14, EU:T:2016:483), and of 15 September 2016, Philip Morris v Commission (T‑18/15, not published, EU:T:2016:487). The requested document, she argues, does not reveal the choices that the Parliament may have to make with regard to the procedural strategy when the acts are drawn up later. In addition, Mr De Capitani is free to share that decision with anyone he wishes to share it with or to publish that document.

34      According to the applicant, the judgment 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), cannot be read in such a way as to include, in general, all documents that are in some way connected to court proceedings. Only parties justifying a legitimate interest in the proceedings may be granted access to the documents. Those restrictions do not, however, apply to the requested document.

35      The applicant further submits that the practice of the European Commission and the Council shows that it is routine practice to publish administrative decisions, including replies to confirmatory applications submitted in the context of applications for access to documents, notwithstanding the risk that they might subsequently be subject to judicial review. That shows that such documents do not come within the exception at issue.

36      The Parliament disputes those arguments and contends that the first part of the first plea should be rejected.

37      Under the second indent of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of court proceedings and legal advice.

38      The protection of court proceedings requires, in particular, that both the principle of equality of arms, on the one hand, and the sound administration of justice and the integrity of court proceedings, on the other, are observed (judgment of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 38).

39      Thus, under the second indent of Article 4(2) of Regulation No 1049/2001, the public interest precludes disclosure of the content of documents drawn up solely for the purposes of specific court proceedings. Those documents include the pleadings or other documents lodged during court proceedings, internal documents concerning the investigation of a pending case and correspondence between the Directorate-General concerned and the Legal Service or a law firm concerning the case (see, to that effect, judgment of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraphs 51 and 52 and the case-law cited).

40      In that regard, the Court has held that the need to ensure equality of arms before a court justifies the protection not only of documents drawn up solely for the purposes of specific court proceedings, such as pleadings, but also of documents the disclosure of which is liable, in the context of specific proceedings, to compromise that equality, which is a corollary of the very concept of a fair trial. However, in order for that exception to apply, it is necessary that the requested documents, at the time of adoption of the decision refusing access to those documents, should have a relevant link with a dispute pending before the Courts of the European Union, in respect of which the institution concerned is invoking that exception, and that disclosure of those documents, even though they were not drawn up in the context of pending court proceedings, should undermine the principle of equality of arms and, potentially, the ability of the institution concerned to defend itself in those proceedings. In other words, it is necessary that those documents should reveal the position of the institution concerned on contentious issues raised during the court proceedings relied on (judgment of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 88).

41      The Court specified that, although those documents had not been drawn up in the context of specific court proceedings, the integrity of the court proceedings concerned and the equality of arms between the parties could be seriously compromised if parties were to benefit from privileged access to internal information belonging to the other party, closely connected to the legal aspects of pending or potential, but imminent, proceedings (judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 90, and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 65).

42      It is in the light of those considerations in the Court’s case-law that the first part of the first plea in law should be examined.

43      In the present case, the Parliament took the following view in the contested decision:

‘As is stated in the reply to your initial application, the European Parliament assessed the requested document and found that its disclosure would undermine the protection of court proceedings.

The legal concept of the protection of court proceedings has been extensively interpreted by the General Court. In the Philip Morris cases, the Court found that the exception to the right of access to documents protecting judicial proceedings may apply to other documents than the pleadings submitted to the Court by the institutions of the European Union. Indeed, the Court determined that the necessity to ensure the principle of a fair trial and the equality of arms warrants the protection of other documents than the parties’ written pleadings inasmuch as the documents have a relevant link with a dispute pending before the Court and their disclosure would affect the principle of equality of arms.

The requested document has a clear and relevant link to pending proceedings before the General Court. The decision contained in the document is currently being challenged before the Court in the Case T‑540/15. Besides, it should also be stressed that the requested document is crucial from the viewpoint of the legal proceedings: it defines the scope of Parliament’s defence. In this respect, a parallel can be drawn with the document by which the applicant filed his action before the Court and defined the scope of his own claims’. (Annex A.1.)

44      In the first place, as regards the alleged failure to state reasons, it should be borne in mind, first of all, that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (judgments of 22 March 2001, France v Commission, C‑17/99, EU:C:2001:178, paragraph 35, and of 26 October 2011, Dufour v ECB, T‑436/09, EU:T:2011:634, paragraph 52).

45      It must be stated that the arguments relied on by the applicant in the context of the first part of the first plea do indeed concern the issue of whether the reasons given for the contested decision are correct.

46      Moreover, it should be noted that the contested decision contains a statement of the reasons for which the Parliament found that the exception referred to in the second indent of Article 4(2) of Regulation No 1049/2001 is applicable to the requested document.

47      The complaint alleging failure to state reasons must consequently be rejected.

48      In the second place, as regards the alleged misinterpretation and misapplication of the second indent of Article 4(2) of Regulation No 1049/2001, it must be stated, first, that the requested document is not a document drawn up solely for the purposes of specific court proceedings, unlike the pleadings at issue in the case which gave rise to the judgment 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).

49      Second, it is common ground that the requested document was the subject of an application for annulment in the case which has since given rise to the judgment of 22 March 2018, De Capitani v Parliament (T‑540/15, EU:T:2018:167), a case which was pending when the contested decision was adopted. It follows that the requested document presented, at the time when the contested decision was adopted, a link with a dispute pending before the Courts of the European Union.

50      However, it should be stated that, in the cases referred to by the Parliament in the contested decision, the Court held that disclosure of the requested documents to the public, while court proceedings were in progress, could compromise the Commission’s defence position and the principle of equality of arms, in so far as it would disclose internal positions of a legal nature, issued by its services, on contentious issues, while no similar obligation would be imposed on the other party (see, to that effect, judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 90, and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 65).

51      In those cases, the requested documents contained positions taken by the officials of the various Directorates-General of the Commission as regards the legality of the various envisaged choices. In that regard, the Court recalled that the principle of equality of arms requires the institution by which the contested act was issued to be in a position effectively to defend the legality of its actions before the Courts. That possibility would be seriously compromised if the institution in question were to be obliged to defend itself, not only having regard to the pleas in law and arguments raised by the applicant, but also having regard to the positions taken internally concerning the legality of the various options envisaged in the context of the drawing up of the act in question. In particular, disclosure of documents containing that type of position is such as to oblige the institution concerned, as a result, to defend itself against assessments by its own staff which have, ultimately, been disregarded. That fact could upset the balance between the parties to court proceedings, inasmuch as the applicant could not be obliged to disclose that type of internal assessment (judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraphs 88, 96 and 97, and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraphs 72 and 73).

52      By contrast, in the present case, the requested document cannot be classified as a document containing ‘internal positions’. It is an administrative decision which contains the Parliament’s final position, namely that disclosure of the requested document must be refused in part. Accordingly, it must be held that that document does not contain internal positions preceding the adoption of that definitive position. Consequently, in the present case, disclosure of the requested document would in no way oblige the Parliament to defend itself against the positions taken internally on the legality of the various choices envisaged in the drafting of the requested document or against assessments made by its own staff, which were ultimately not accepted.

53      It follows that, unlike the documents at issue in the cases relied on by the Parliament in the contested decision, the requested document does not constitute a document liable to compromise the Parliament’s defence position and the principle of equality of arms.

54      In those circumstances, it must be found that the requested document does not come within the scope of the exception referred to in the second indent of Article 4(2) of Regulation No 1049/2001 and that the Parliament could not therefore rely on that exception in order to refuse the applicant access to that document.

55      In the light of the foregoing, the first part of the first plea in law must be upheld and, accordingly, the contested decision must be annulled, without it being necessary to examine the other complaints put forward by the applicant.

 Costs

56      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 Parliament has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the applicant.

57      In accordance with Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. The Republic of Finland and the Kingdom of Sweden shall therefore each bear their own costs.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Annuls Decision A(2016) 15112 of the European Parliament of 3 April 2017 refusing to grant Ms Päivi Leino-Sandberg access to Decision A(2015) 4931 of the Parliament of 8 July 2015 addressed to Mr Emilio De Capitani;

2.      Orders the Parliament to bear its own costs and to pay those incurred by Ms Päivi Leino-Sandberg;

3.      Orders the Republic of Finland and the Kingdom of Sweden to bear their own respective costs.

Delivered in open court in Luxembourg on 28 September 2022.

*      Language of the case: English.

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