17 February 2023 (*)

(Procedural issue – Request for removal of documents)

In Case T‑526/19 RENV,

Nord Stream 2 AG,

established in Steinhausen (Switzerland), represented by T. Winter, lawyer,

applicant,

European Parliament,

represented by A. Tamás, O. Denkov and J. Etienne, acting as Agents,

Council of the European Union,

represented by K. Pavlaki and L. Vétillard, acting as Agents,

defendants,

supported by

Republic of Estonia,

represented by N. Grünberg, acting as Agent,

by

Republic of Latvia,

represented by K. Pommere, acting as Agent,

by

Republic of Lithuania,

represented by K. Dieninis and R. Dzikovič, acting as Agents,

by

Republic of Poland,

represented by B. Majczyna, acting as Agent,

and by

European Commission,

represented by O. Beynet and B. De Meester, acting as Agents,

interveners,

THE GENERAL COURT (Fifth Chamber),

composed of J. Svenningsen (Rapporteur), President, C. Mac Eochaidh and J. Martín y Pérez de Nanclares, Judges,

Registrar: E. Coulon,

makes the following

By its action based on Article 263 TFEU, the applicant, Nord Stream 2 AG, seeks the annulment of Directive (EU) 2019/692 of the European Parliament and of the Council of 17 April 2019 amending Directive 2009/73/EC concerning common rules for the internal market in natural gas (OJ 2019 L 117, p. 1; ‘the contested directive’).

As Annex A.14 to the application, the applicant produced the recommendation adopted by the European Commission on 9 June 2017 for the attention of the Council of the European Union for the adoption of a decision authorising the opening of negotiations on an international agreement between the European Union and the Russian Federation on the operation of the Nord Stream 2 pipeline (‘the Commission recommendation’).

By separate document lodged at the Court Registry on 11 October 2019 pursuant to Article 130(2) of the Rules of Procedure of the General Court, the Council requested the Court to order that several documents, including the Commission recommendation, be removed from the file and that no account be taken of the passages in the application and the annexes thereto in which extracts from those documents are reproduced.

In support of its request, the Council submits that the Commission recommendation is classified as ‘Restreint UE/EU Restricted’ within the meaning of Article 2(2)(d) of Council Decision 2013/488/EU of 23 September 2013 on the security rules for protecting EU classified information (OJ 2013 L 274, p. 1), namely ‘information and material the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or of one or more of the Member States’. It adds that, if the applicant were to be permitted to produce that document in support of its action, that would amount, first, to circumventing the procedures laid down in 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, second, to undermining the interests protected by that regulation as regards international relations, the decision-making process and court proceedings.

In its observations on that request, the applicant submits that the Commission recommendation is manifestly relevant for the purpose of assessing the merits of the pleas on which it relies, in particular the infringement of the principles of equal treatment and legal certainty and the misuse of powers. It adds that the protection conferred by the classification ‘Restreint UE/EU Restricted’ is extinguished de facto when, as in the present case, the Council having taken no measures to prevent its circulation or to enforce its rules outside its walls, that document was available in the public domain, in this case on the internet, and has been extensively cited in a number of published academic articles. Moreover, the Commission itself disclosed a large part of its recommendation in a press release.

By separate document lodged at the Registry on 29 November 2019, the applicant requested the Court, pursuant to Article 88 of the Rules of Procedure, to adopt a measure of organisation of procedure or, if appropriate, a measure of inquiry, for the production of certain documents held by the Council, in particular the observations submitted by the Member States on Commission proposal COM(2017) 660 final of 8 November 2017 (‘the proposal for a directive’), following which, on 17 April 2019, the European Parliament and the Council adopted the contested directive. The applicant attached to that request, as Annexes M.25, M.26, M.29 and M.30, the confidential and non-confidential versions of the observations of the Federal Republic of Germany of 11 December 2017 and 21 January 2019 on the proposal for a directive amending Directive 2009/73 (‘the observations of the Federal Republic of Germany’).

In its observations of 17 January 2020 on that request for measures of organisation of procedure and measures of inquiry, the Council requested the removal from the file of the confidential version of the observations of the Federal Republic of Germany (Annexes M.26 and M.30).

In support of its request, the Council submits that the confidential version of the observations of the Federal Republic of Germany was unlawfully obtained by the applicant and, consequently, unlawfully produced and placed on the case file. In those circumstances, retaining those documents in the file would, in the absence of an action under Article 263 TFEU, amount to circumventing the definitive nature of the decision by which an employee of the applicant, under Regulation No 1049/2001, obtained only partial access to the non-confidential version of the observations of the Federal Republic of Germany (Annexes M.25 and M.29). According to the Council, there is a risk that those documents may be used by the applicant to support its allegations before an arbitral tribunal and thus call into question the validity of an EU act before a court other than the Courts of the European Union. Moreover, full disclosure of those documents would risk undermining the public interest as regards international relations, since those documents include positions taken that could be used against the European Union or the Federal Republic of Germany in the negotiation of future long-term gas contracts with third countries. Finally, those observations are irrelevant in the present case since they are merely preparatory documents.

In response, the applicant submits that the observations of the Member States on the proposal for a directive are highly relevant for the purpose of assessing the merits of the pleas on which it relies, in particular those alleging infringements of the principles of equal treatment and legal certainty and a misuse of powers. That is sufficient for the Court to order the production of those documents in their entirety, the passages relating to an opinion of the Council’s Legal Service or containing personal data having been redacted as appropriate.

By order of 20 May 2020, Nord Stream 2 v Parliament and Council (T‑526/19, EU:T:2020:210), the Court ordered the removal from the file of several documents, including the Commission recommendation (Annex A.14) and the observations of the Federal Republic of Germany (Annexes M.26 and M.30). In addition, the Court dismissed the action as inadmissible after holding that the applicant was not directly concerned by the contested directive.

By judgment of 12 July 2022, Nord Stream 2 v Parliament and Council (C‑348/20 P, EU:C:2022:548), the Court of Justice set aside, in part, the order of 20 May 2020, Nord Stream 2 v Parliament and Council (T‑526/19, EU:T:2020:210).

As regards the request for the removal of documents from the file, the Court of Justice set aside point 1 of the operative part of the order of 20 May 2020, Nord Stream 2 v Parliament and Council (T‑526/19, EU:T:2020:210), in so far as the General Court had ordered the removal from the file of the Commission recommendation, and point 3 of that operative part, by which the General Court had ordered that the observations of the Federal Republic of Germany be removed from the file.

In particular, the Court of Justice held that the General Court had erred in law by failing to examine whether it was possible to establish from the Council’s arguments that retaining those documents on the file was likely specifically and actually to undermine the interest protected by Article 4(1)(a) of Regulation No 1049/2001 on the protection of international relations (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraphs 142 to 146). In addition, even if such a risk of harm exists, the Court of Justice found that the General Court had not weighed up the interests at stake (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 147).

As regards the admissibility of the action, the Court of Justice held that the General Court had erred in law with regard to the assessment of whether the applicant was directly concerned. Since the state of the proceedings permitted final judgment to be given on that point, the Court of Justice, after finding that the applicant was directly and individually concerned by Articles 36 and 49a of Directive 2009/73, as amended and inserted respectively by the contested directive, held that the action was admissible in so far as it was directed against those provisions.

As to the remainder, the Court of Justice referred the case back to the General Court and reserved the costs.

As the order of 20 May 2020, Nord Stream 2 v Parliament and Council (T‑526/19, EU:T:2020:210), was set aside by the Court of Justice at a time when the written part of the procedure on the substance of the case had not yet been closed before the General Court, the case is to be resumed at the stage which it had reached, in accordance with Article 217(2) of the Rules of Procedure.

Therefore, following the referral of the case back to the General Court, it is for the General Court, pursuant to Article 130(7) of the Rules of Procedure, to rule again on the Council’s request for the removal from the file of the Commission recommendation and the observations of the Federal Republic of Germany or, if special circumstances justify it, to reserve its decision until it rules on the substance of the case.

In that regard, in the absence of any provision in the Statute of the Court of Justice of the European Union or in the Rules of Procedure of the General Court governing the question of the admissibility of an item of evidence, reference should be made to the case-law according to which the principle that prevails in EU law is that of the unfettered evaluation of evidence, from which it results that the admissibility of evidence produced in good time can be contested before the EU Courts only on the ground that it has been obtained improperly (see judgment of 30 September 2021, Court of Auditors v Pinxten, C‑130/19, EU:C:2021:782, paragraph 104 and the case-law cited).

Where evidence has been improperly produced by a party, such as internal documents covered by Regulation No 1049/2001 the production of which has been neither authorised by the institution concerned nor ordered by an EU Court, it is necessary to weigh the interests of the respective parties to the proceedings in connection with their right to a fair hearing, taking into account the interests protected by the rules that have been breached or circumvented in obtaining that evidence (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 130).

It follows that the Courts of the European Union, hearing a request for the removal of evidence produced improperly, must weigh in the balance, on the one hand, the interest of the applicant who produced those items of evidence, having regard, inter alia, to their usefulness for the purposes of assessing the merits of the action brought before it and, on the other hand, the interests of the opposing party which the retention in the file of those items of evidence could specifically and effectively harm (see, to that effect, judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 131).

In the present case, in the first place, as regards the question whether the documents at issue were obtained improperly, it is common ground, first, that the applicant did not request authorisation from the Commission or the Federal Republic of Germany to produce those documents before the Court, secondly, that the Court did not order their production in the present action and, thirdly, that neither the Commission, nor the Parliament, nor the Council authorised the disclosure of the confidential version of those documents in the context of an application for public access to the documents of the institutions, in accordance with the provisions of Regulation No 1049/2001.

However, according to the case-law cited in paragraphs 19 and 20 above, neither the fact that the documents in question may be confidential nor the fact that they may have been obtained unlawfully precludes, in principle, their retention in the file (see, to that effect, judgment of 8 November 2018, QB v ECB, T‑827/16, EU:T:2018:756, paragraph 63 and the case-law cited).

Thus, in the second place, it is necessary to identify, on the one hand, the interests of the applicant which has produced those documents, in particular, their usefulness for the purposes of assessing the merits of the action and, on the other hand, the interests of the Council which retaining those documents in the file could harm, with a view to weighing up those interests.

In that respect, as regards the applicant’s interests, it must be borne in mind that it has been held, in particular, that the decisive nature of the production of a document for the purpose of reviewing the lawfulness of the procedure leading to the adoption of the contested measure or of establishing the existence of a misuse of powers may justify not withdrawing a document that has been obtained unlawfully (see, to that effect, judgment of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 79 and the case-law cited).

In the present case, the applicant relies on the three documents in question in support, in particular, of the fourth plea, with a view to establishing that there was a misuse of powers.

In particular, in the application, it claims that the legislature adopted the contested directive in order to discourage the development of the Nord Stream 2 marine pipeline and to circumvent certain difficulties arising from the adoption of the Commission recommendation. In addition, in its request for measures of organisation of procedure and measures of inquiry, the applicant submits that the observations of the Federal Republic of Germany substantiate that claim.

In that regard, the fact that the observations of the Federal Republic of Germany are merely preparatory work for the contested directive does not mean that they are necessarily irrelevant for the purposes of ruling on the present dispute, given that it cannot automatically be ruled out that such travaux préparatoires reveal the intention of the EU legislature when it adopted the contested directive.

Therefore, without prejudice to the question whether that argument is indeed relevant for the purposes of assessing the legality of the contested directive, it suffices for a finding that the applicant relies on the decisive nature of the production of those documents for the purposes of ruling in the present case.

For its part, the Council considers, in essence, that retaining those documents in the case file would harm various interests protected by Article 4 of Regulation No 1049/2001.

Whilst it is not applicable in the present action, that regulation nevertheless has a certain indicative value for the purpose of weighing up the interests required to rule on a request for removal of documents such as that at issue (see, to that effect, judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 132 and the case-law cited).

In that context, it must be recalled that, where an institution intends to rely on the exceptions laid down in Article 4 of Regulation No 1049/2001, it must, in principle, explain how access to the document in question could specifically and actually undermine those interests and show that that risk is reasonably foreseeable and not purely hypothetical (see, to that effect, judgment of 3 July 2014, Council v in ’t Veld

31, C‑350/12 P, EU:C:2014:2039, paragraph 52 and the case-law cited).

32In that respect, first, as regards the Commission recommendation, the Council merely claims that its disclosure would undermine the protection of the public interest as regards international relations, harm the decision-making process of that institution and compromise its position in the context of an arbitration procedure initiated by the applicant.

33That argument, which contains no explanation as to the specific and actual nature of the risk of undermining those interests protected by Article 4 of Regulation No 1049/2001, cannot succeed.

34A specific and actual risk of undermining international relations or the Council’s decision-making process cannot be inferred from the mere fact that that document relates to the process of adopting a decision relating to international negotiations with a third State (see, to that effect, judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 145).

35Furthermore, as regards the interest relating to the protection of court proceedings covered by the second indent of Article 4(2) of Regulation No 1049/2001, it must be noted that a document which has not been drawn up for the purposes of specific court proceedings is capable of being protected under that exception only if it was produced in the context of those court proceedings (see, to that effect, judgment of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraph 48).

36It is not apparent from the documents before the Court that the Commission recommendation was produced in the context of the arbitration proceedings initiated by the applicant against the European Union.

37In any event, it follows from the first sentence of Article 4(7) of Regulation No 1049/2001 that, in order to determine whether a document falls within the scope of one of the exceptions to the right of access to documents laid down in paragraphs 1 to 3 of that article, only the content of the document requested is relevant (see, to that effect, judgment of 12 October 2022, Saure v Commission, T‑524/21, EU:T:2022:632, paragraph 44 and the case-law cited).

38The Council’s argument contains no reference to the content of the Commission recommendation which would enable the Court to assess to what extent retaining that recommendation in the file would compromise the defence of that institution, which is not the author of the document in question, or that its retention would undermine the principle of equality of arms, the sound administration of justice, or even the integrity of the arbitration proceedings concerned.

39As regards the risk that the applicant might use that Commission recommendation in the arbitration proceedings brought against the European Union, it suffices to observe that retaining those documents in the case file has no effect on the content of the file of the case pending before the arbitral tribunal, which is determined according to the rules of procedure of that arbitral tribunal.

40Second, as regards the observations of the Federal Republic of Germany, it must be held that the Council’s argument also contains no explanation of the specific and actual risk of the interests protected by Article 4 of Regulation No 1049/2001 being undermined.

41In particular, in the light of the indicative value of Regulation No 1049/2001 for deciding on a request for withdrawal of documents, the arguments relied on by the Council in its decision rejecting a confirmatory application for access to those observations cannot be decisive in the present interim proceedings. In order for the withdrawal of those observations to be justified, it is for the Council to establish that retaining them in the file would be likely to cause specific and actual harm to the interest relied on (see, to that effect, judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 143).

42In the present case, that has not been established, since the Council merely referred to the arguments put forward in its decision rejecting a confirmatory application for access to the observations of the Federal Republic of Germany. In those circumstances, retaining those observations in the file, which does not entail their disclosure to the public, is not capable of calling into question the merits of that decision on the confirmatory application.

43As regards the risk that the applicant might use those observations in the arbitration proceedings brought against the European Union, it suffices to recall that the content of the file of the case pending before the arbitral tribunal is determined by the rules of procedure of that arbitral tribunal and cannot therefore depend solely on the content of the file in the present case.

44It follows from the foregoing that the Council has not succeeded in establishing that retaining the Commission recommendation and the observations of the Federal Republic of Germany in the file would be likely specifically and actually to harm its interests.

45Even if retaining those documents in the file would entail such a risk, it must in any event be held, in the third place, that a weighing up of the interests involved tips in favour of the applicant.

46In so far as the fourth plea alleges a misuse of powers, it must be borne in mind that a measure is vitiated by such a defect only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaties for dealing with the circumstances of the case (see judgment of 24 November 2022, Parliament v Council (Technical measures relating to fishing opportunities), C‑259/21, EU:C:2022:917, paragraph 61 and the case-law cited).

47In view of the high standard of proof required, the principle of equality of arms, which is a corollary of the very concept of a fair hearing, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, militates in favour of the admissibility of the evidence relied on by the applicant in support of such a plea.

48In addition, it should also be observed that, as regards the Commission’s recommendation, its confidential nature was compromised by its publication on the internet, with the result that its production in the file in the present case does not otherwise undermine that confidential nature (see, by analogy, judgment of 12 May 2015, Dalli v Commission, T‑562/12, EU:T:2015:270, paragraph 50).

49In the light of the foregoing, without prejudice for the Court to omit, upon reasoned application or of its own motion, certain information from the documents relating to the case to which the public has access, pursuant to Article 66 of the Rules of Procedure, the Council’s preliminary application must be dismissed in so far as it seeks the removal from the file of the Commission’s recommendation (Annex A.14) and the observations of the Federal Republic of Germany (Annexes M.26 and M.30), and the costs must be reserved.

On those grounds,

hereby orders:

1.The application for a decision on a procedural issue submitted by the Council of the European Union is dismissed.

2.The costs are reserved.

Luxembourg, 17 February 2023.

J. Svenningsen

Registrar

President

—

Language of the case: English.