12 September 2018 (*)

(Action for annulment and compensation — Access to documents — Regulation (EC) No 1049/2001 — Implied refusal of access — No need to adjudicate — Express refusal of access — Modification of the form of order sought — Article 86(4)(a) and (b) of the Rules of Procedure — Article 76(d) of the Rules of Procedure — Inadmissibility)

In Case T‑257/17,

RE,

represented by S. Pappas, lawyer,

applicant,

European Commission,

represented by A. Buchet and C. Ehrbar, acting as Agents,

defendant,

APPLICATION, first, under Article 263 TFEU for annulment of an implied decision of the European Commission rejecting the applicant’s confirmatory application of 20 January 2017 for access to documents and for annulment of Decision C(2017) 3718 final of the Secretary General of the Commission of 24 May 2017 to the extent to which it refuses access to a note concerning the applicant’s recruitment and, second, under Article 268 TFEU for compensation in respect of the damage allegedly suffered due to the refusal of access to those documents and the delay in examining the request for access to those documents,

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni, President, K. Kowalik-Bańczyk (Rapporteur) and C. Mac Eochaidh, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

The applicant, RE, works as [confidential] (1) within the European Commission’s Directorate-General for Development and Cooperation.

The applicant was the subject of an administrative investigation initiated by the Security Directorate of the European Commission’s Directorate-General for Human Resources and Security (‘the Security Directorate’).

Request for access to personal data

By email of 5 December 2013, the applicant submitted to the Security Directorate a request on the basis of Article 13 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1), to provide him with all the information and personal and/or professional data concerning him held by that directorate.

Following a lengthy procedure, the director of the Security Directorate, by decision of 8 March 2016 (‘the decision of 8 March 2016’) partially granted the applicant’s request for access to his personal data by providing him with access to certain of those data and by sending, moreover, eight documents to him. That decision contained in particular, as an annex, a table identifying 71 documents in the possession of the Security Directorate. Among those documents, under number 57, was a note concerning the ‘recruitment of [the applicant] as [confidential] in [the Directorate-General for Development and Cooperation]’ dated 23 January 2012 (‘the recruitment note’).

Application for access to documents

By email of 29 April 2016 addressed to the Security Directorate, the applicant took note of the answers provided by the decision of 8 March 2016 and applied for access to certain documents listed in the table annexed to the decision of 8 March 2016.

On 14 September 2016, the Security Directorate replied to the applicant. Taking the view that it was being required to deal with an application for access to documents submitted on the basis 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), the Security Directorate requested the applicant, on the basis of Article 6(2) of that regulation, to clarify his application for access to documents so that it could identify the documents to which he wished to obtain access.

By email of 21 September 2016 addressed to the Security Directorate (‘the request of 21 September 2016’), the applicant requested access to 42 of the 71 documents identified in the decision of 8 March 2016, including the recruitment note, or, at least, to the information contained in those documents by relying, in particular, on Article 6 of Regulation No 1049/2001.

On 12 October 2016, the Security Directorate responded to the request of 21 September 2016 with a note worded as follows:

‘... In your [request of 21 September 2016] you … refer to Regulation No 1049/2001 ..., requesting to be granted access to specific documents of [your] file mentioned in [the table annexed to the decision of 8 March 2016]. In this context, I would like to [advise] you that documents given to you under that Regulation become available to any other requester in the future, thus de facto public, possibly merely expunged of your personal data.

Please be informed that, in the light of the above, your access-to-documents request will be closed. If [that] application is introduced for personal purposes, please confirm this to us by indicating your private email and postal address.’

By email of 20 October 2016 (‘the email of 20 October 2016’), the applicant reiterated his wish to access the 42 documents mentioned in the request of 21 September 2016 and communicated his email and personal addresses to the Security Directorate.

By decision of 22 December 2016 (‘the decision of 22 December 2016’), the Director-General of the Directorate-General for Human Resources and Security partially granted the applicant’s application for access to documents, giving him access to an expunged version of three of the documents requested and refusing to communicate to him, even in expunged form, 24 other documents. However, that director-general did not examine in that decision the possibility of granting access to the 15 other documents the communication of which had been sought in the request of 21 September 2016 and in the email of 20 October 2016, including the recruitment note.

By email of 20 January 2017, the applicant sent a confirmatory application for access to the documents requested (the ‘confirmatory application’), pursuant to Article 7 of Regulation No 1049/2001. In his confirmatory application, the applicant noted the absence, in the decision of 22 December 2016, of any mention of 15 of the documents referred to in the letters of 21 September and 20 October 2016 and reiterated his request for access to those 15 documents.

By letter of 10 February 2017, the Secretariat-General of the Commission informed the applicant that the period for replying to his request had been extended by 15 working days pursuant to Article 8(2) of Regulation No 1049/2001 and that the new deadline would expire on 6 March 2017.

By letter of 3 March 2017, the Secretariat-General of the Commission informed the applicant that the Commission would not be able to reply to his confirmatory request before 6 March 2017 and that a decision would be sent to him in the course of the following weeks.

As no express decision had been taken as of 6 March 2017, the applicant took the view that an implied decision rejecting the confirmatory request (‘the implied rejection decision’) had arisen on 6 March 2017 pursuant to Article 8(3) of Regulation No 1049/2001.

On 24 May 2017, the Secretariat-General of the Commission adopted an express decision, bearing reference C(2017) 3718 final, by which it rejected the applicant’s confirmatory request (‘the decision of 24 May 2017’). That decision set out four reasons for the refusal — partial or total — of access to the 42 documents mentioned in the request of 21 September 2016 and in the letter of 20 October 2016, including the recruitment note, referred to in that decision as document 38. The first of those reasons — all of which were applicable to the recruitment note — was based on the protection of the public interest as regards public security (Article 4(1)(a), first indent, of Regulation No 1049/2001); the second, on the protection of the public interest as regards international relations (Article 4(1)(a), third indent, of the same regulation); the third, on the protection of the purpose of inspections, investigations and audits (Article 4(2), third indent, of that regulation) and, the fourth, on the protection of privacy and the integrity of the individual (Article 4(1)(b) of that regulation).

Procedure and forms of order sought

By application lodged at the Registry of the General Court on 3 May 2017, the applicant brought the present action seeking to obtain, first, annulment of the implied rejection decision and, second, compensation for the non-material harm allegedly suffered due to the refusal of access to the documents and the delay in examining his request for access to the documents.

By separate document, lodged at the Court Registry on the same day, the applicant requested anonymity. By decision of 21 June 2017, the Court granted that request.

On 11 July 2017, the applicant submitted, pursuant to Article 86 of the Rules of Procedure of the General Court, a statement modifying the application so as to take account of the decision of 24 May 2017. On that occasion, he requested that that decision be annulled, but only to the extent to which it refused to grant him access to the recruitment note.

By separate document, lodged at the Court Registry on 27 July 2017, the Commission submitted, first, an application for a declaration that there is no need to adjudicate in relation to the claim for annulment of the implied rejection decision and, second, a plea of inadmissibility regarding the applicant’s claim for compensation.

On 13 September 2017, the applicant lodged his observations on the plea of inadmissibility at the Court Registry.

On 15 September 2017, the Commission lodged its observations on the statement of modification at the Court Registry.

The applicant claims that the Court should:

–declare that there is no longer any need to rule on the form of order seeking annulment of the implied rejection decision;

–grant his request for modification of the application and annul the decision of 24 May 2017 to the extent to which it refuses access to the recruitment note;

–reject the plea of inadmissibility and order the Commission to pay the applicant ‘fair and equitable compensation’ for the non-material damage which he suffered due to the refusal of access to the documents and the delay in examining his request for access to the documents;

–order the Commission to pay the costs.

The Commission contends that the Court should:

–declare that there is no longer any need to rule on the form of order seeking annulment of the implied rejection decision;

–reject the claim seeking annulment of the decision of 24 May 2017 as inadmissible or, in any event, as unfounded;

–reject the claim for compensation as inadmissible or, failing that, as manifestly devoid of all basis in law;

–order the applicant to bear his own costs.

Law

Pursuant to Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without going to the substance of the case. Furthermore, pursuant to Article 130(2) and (7) of those rules, the Court may, if the defendant so requests, declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it. Last, under Article 126 of those rules, where an action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.

The claim for annulment

It is necessary to distinguish between the form of order set out in the application and directed against the implied rejection decision, on the one hand, and the form of order set out in the statement of modification and directed against the decision of 24 May 2017, on the other.

The form of order directed against the implied rejection decision

By reason of the intervention of the decision of 24 May 2017, the Commission applies for a declaration that there is no need to adjudicate in relation to the form of order seeking annulment of the implied rejection decision.

The applicant acknowledges that there is no longer any need to rule on the form of order seeking annulment of the implied rejection decision.

In that regard, it should be stated that, by adopting the decision of 24 May 2017, the Commission responded, in an express manner, to the confirmatory request and has therefore, in fact, withdrawn the implied rejection decision adopted previously.

Consequently, there is no longer any need to adjudicate on the form of order seeking annulment of the implied rejection decision, since that form of order has lost its object and the applicant no longer has an interest in bringing proceedings against that decision by reason of the adoption, on 24 May 2017, of an express rejection decision (see, to that effect, judgments of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraph 45, and of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraphs 45 and 48).

The form of order directed against the decision of 24 May 2017

In his statement of modification, the applicant requests that the decision of 24 May 2017 be annulled to the extent to which it refuses access to the recruitment note.

In its observations on the statement of modification, the Commission argues that, since it fails to meet the requirements laid down in Article 86(4) of the Rules of Procedure, the statement of modification is inadmissible. First, it submits, the statement of modification does not contain a modified, unequivocal form of order but simply expresses a mere intention to limit the scope of the application. Second, it submits, that statement of modification does not contain modified pleas in law and arguments taking into account the decision of 24 May 2017 and directed specifically against it and its new statement of reasons.

In that regard, it must be recalled that it follows from Article 86(1) and (2) of the Rules of Procedure that, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the Court to rule without an oral part of the procedure, modify the application to take account of that new factor. The modification of the application must be made by a separate document within the time limit laid down in the sixth paragraph of Article 263 TFEU within which the annulment of the measure justifying the modification of the application may be sought.

It must also be recalled that, by virtue of Article 86(4)(a) and (b) of the Rules of Procedure, the statement modifying the application must contain, inter alia, the modified form of order sought and, where appropriate, the modified pleas in law and arguments.

In the case at hand, in view of the Commission’s argument, it is necessary to examine whether the statement of modification contains, first, a modified form of order sought within the meaning of Article 86(4)(a) of the Rules of Procedure and, second, modified pleas in law and arguments within the meaning of Article 86(4)(b) of those rules.

–The formulation of a modified form of order

It must be held that the statement of modification includes a form of order, set out in paragraph 9 of that statement and repeated in the operative part, by which the applicant requests, expressly and unconditionally, annulment of the decision of 24 May 2017 to the extent to which it refuses access to the recruitment note. It follows that the statement of modification contains an unequivocal form of order sought which modifies the application for the purposes of challenging the decision of 24 May 2017.

That finding cannot be called into question either by the reference, in paragraph 9 of the statement of modification, to the applicant’s remark that he ‘intends to request the partial annulment of the [decision of 24 May 2017]’ or by the use, in the same paragraph, of a verb in the conditional tense to indicate that the request for modification ‘would constitute limiting the scope of the … application’. While it is true that, in doing so, the applicant did not expressly indicate that he intended to maintain or abandon his initial form of order seeking annulment of the implied rejection decision, which pertained to 42 documents, he has nevertheless indicated clearly that he henceforth intends to request the annulment of the decision of 24 May 2017 to the extent to which it refused access to the recruitment note.

It follows that, contrary to what the Commission argues, the statement of modification contains a modified form of order sought within the meaning of Article 86(4)(a) of the Rules of Procedure.

–The presentation of modified pleas in law and arguments

It must be pointed out that, in his statement of modification, the applicant merely modifies his form of order sought so as to obtain the annulment of the decision of 24 May 2017, to the extent to which it refuses access to the recruitment note, without specifying which pleas in law he intends to raise against that decision. In particular, the applicant does not indicate whether he intends to repeat, against the decision of 24 May 2017, either of the two pleas put forward in his application against the implied rejection decision.

For a statement of modification to be admissible, the pleas in law and arguments relied on against the act justifying the modification of the application must be set out in that statement in sufficiently clear and precise terms to enable the defendant to prepare its defence and to enable the Court to rule on that modification (judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 139; see also, to that effect, judgment of 28 January 2016, Klyuyev v Council, T‑341/14, EU:T:2016:47, paragraphs 71 to 73).

In addition, the applicant must, in principle, explain why the pleas in law and arguments previously relied on are transposable to the act referred to in his statement of modification (judgment of 8 November 2017, Klymenko v Council, T‑245/15, not published, under appeal, EU:T:2017:792, paragraph 235; see also, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraphs 136 to 138). In the absence of explanation from the applicant, the pleas which the applicant put forward in the application are admissible as regards the act referred to in his statement of modification only in so far as they may be transposed to the specific context of that act without any explanation being needed (see, to that effect, judgment of 8 November 2017, Klymenko v Council, T‑245/15, not published, under appeal, EU:T:2017:792, paragraph 236).

In the case at hand, it should be noted that the implied rejection decision, by definition, contained no reasoning. The decision of 24 May 2017, by contrast, was formulated in express terms and set out, as has been noted in paragraph 15 above, the four reasons for which access to the documents requested, in particular the recruitment note, was refused. Regarding that note more specifically, it should also be pointed out that the reasons set out in the decision of 24 May 2017 were completely novel in so far as, as has been noted in paragraph 10 above, the decision of 22 December 2016 had not discussed the possibility of granting access to that note.

As the decision of 24 May 2017 was adopted after the application had been lodged, the applicant could not take into account, in that application, the grounds for refusal behind that decision. Moreover, the applicant raised in the application, against the implied rejection decision, to the extent to which it refused to grant him access to the recruitment note, only a single plea, alleging a failure to state the reasons for that decision. Such a plea cannot simply be transposed to the decision of 24 May 2017 as the latter, unlike the implied rejection decision, contains a statement of reasons. Therefore, in challenging the lawfulness of the decision of 24 May 2017, it was for the applicant to modify his pleas in law and his arguments in order to take account of the existence and the content of the reasons for that decision (see, to that effect and by analogy, judgment of 22 March 2017, Haswani v Council, T‑231/15, not published, under appeal, EU:T:2017:200, paragraph 45).

It is clear, however, that that is not the case here. The applicant puts forward no explanation or element of law or of fact taking into account, inter alia, the circumstance that the decision of 24 May 2017 is not, on the evidence, vitiated by a complete lack of reasoning, since it sets out new grounds for refusing access to the documents requested, which are completely novel as regards the recruitment note.

In those circumstances, it appears that, by failing to include modified pleas in law and arguments within the meaning of Article 86(4)(b) of the Rules of Procedure, the statement of modification does not satisfy the conditions governing admissibility laid down by that article.

It should also be added that the irregularity affecting the statement of modification cannot or, at least, can no longer be rectified. First, Article 86(4) of the Rules of Procedure does not provide for such a possibility of rectification. Second, and in any event, it follows from Article 86(2) of those rules that the modification of the application must be made before the expiry of the period within which proceedings must be brought against the act that justified the request for modification. In the case at hand, however, the Commission notes, correctly, that the period for bringing proceedings against the decision of 24 May 2017 expired on 21 August 2017 since it establishes, by producing a proof of delivery, that that decision was notified to the applicant on 11 June 2017.

Accordingly, the claim for annulment of the decision of 24 May 2017, to the extent to which it refuses access to the recruitment note, is inadmissible.

The claim for damages

As a preliminary point, it should be noted that the applicant seeks damages for two distinct instances of non-material harm resulting, first, from the refusal of access to documents that was issued to him in the implied rejection decision and, second, from the delays in examining his request for access to the documents.

Consequently, it is necessary to examine separately the two claims for damages corresponding to those two distinct instances of harm.

Compensation in respect of the non-material harm allegedly suffered due to the refusal of access to the documents (first claim for damages)

The Commission raises a plea of inadmissibility, which comprises two parts. First, the Commission maintains that the claim for damages at issue is closely linked with the claim for annulment of the decision of 24 May 2017 and that, consequently, it can be assessed by the Court only following an action for annulment of that decision. Second, it takes the view, in essence, that, as it does not indicate with sufficient precision the manner in which the conditions relating to the existence of damage and of a causal link are satisfied, the application fails to meet the requirements of Article 76 of the Rules of Procedure.

The applicant’s response addresses only the first part of that plea of inadmissibility. He argues that the first claim for damages cannot be adjudicated separately from the ‘main claim for annulment’.

As a preliminary point, it should be noted that, in the application, the applicant invokes solely, as the event which gave rise to the harm alleged, the unlawfulness of the implied rejection decision. He did not make, in his statement of modification, any explicit request for modification of the claim for damages. It follows that the Court is not seised of a request for compensation in respect of harm which may have been caused by the decision of 24 May 2017.

Moreover, the Court considers it necessary to examine at the outset the second part of the plea of inadmissibility, alleging that the application fails to satisfy the requirements of Article 76 of the Rules of Procedure.

In that regard, it must be recalled that, pursuant to the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 thereof, and to Article 76(d) of the Rules of Procedure, an application must contain the pleas in law and arguments relied on and a brief statement of those pleas. Those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and to enable the Court to rule on the action, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (see, to that effect, order of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20 and the case-law cited).

In order to satisfy those requirements, an application seeking compensation for damage allegedly caused by an institution must indicate with sufficient precision the manner in which the various conditions for reparation of the alleged damage are satisfied (order of 3 December 1992, TAO/AFI v Commission, C‑44/92, EU:C:1992:497, paragraphs 11 and 12, and judgment of 12 January 1994, White v Commission, T‑65/91, EU:T:1994:3, paragraph 135).

It follows that such an application must contain the evidence making possible identification of, first, the conduct which the applicant alleges against the institution, second, the reasons for which the applicant considers that there is a causal link between that conduct and the damage which he claims to have suffered, and, third, the nature and extent of that damage (see judgments of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 73, and of 30 June 2009, CPEM v Commission, T‑444/07, EU:T:2009:227, paragraph 33 and the case-law cited).

Accordingly, it is necessary to examine whether the first claim for damages contains elements sufficiently precise as regards the cumulative conditions necessary for engaging the liability of the European Union and, in particular, as regards those relating, first, to the nature and extent of the harm allegedly suffered and, second, to the causal link between the conduct alleged against the institution and that harm.

–The nature and extent of the harm allegedly suffered

The Commission contends that the first claim for damages is insufficiently precise as far as the nature and extent of the alleged harm are concerned.

In that regard, it should be noted that, in the application, the applicant refers, without providing further explanation, to a state of significant pre-existing stress and uncertainty with regard to his career and a further accentuation of those feelings due to the implied rejection decision. He states only that the moral damage which he has suffered is significant and cannot be appropriately and adequately repaired solely by annulment of the implied rejection decision.

In those circumstances, and as the Commission argues, it is difficult to identify the exact nature and consistency of the non-material harm alleged and, thus, to assess its existence and its extent.

According to settled case-law, however, the applicant must place the Court in a position to assess the extent and nature of the harm which he has suffered. Therefore, where compensation of non-material injury, whether as symbolic reparation or as genuine compensation, is sought, it is for the applicant to specify, inter alia, the nature of the non-material injury alleged in connection with the conduct complained of on the part of the institution concerned and to quantify the whole of that injury, even if approximately (see judgments of 15 June 1999, Ismeri Europa v Court of Auditors, T‑277/97, EU:T:1999:124, paragraph 81 and the case-law cited, and of 7 February 2007, Gordon v Commission, T‑175/04, EU:T:2007:38, paragraph 45).

In addition, it must be recalled that a claim for any unspecified form of damages is not sufficiently concrete and must therefore be regarded as inadmissible (judgments of 2 December 1971, Zuckerfabrik Schöppenstedt v Council, 5/71, EU:C:1971:116, paragraph 9, and of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 73).

Although the Court of Justice and the General Court have acknowledged that, in certain particular circumstances, it was not essential to specify in the application the exact extent of the harm suffered and the amount of compensation sought (judgments of 23 September 2004, Hectors v Parliament, C‑150/03 P, EU:C:2004:555, paragraph 62, and of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 76), it has also been held that the applicant must establish, or at least indicate, the existence of any such circumstances in the application (orders of 14 May 1998, Goldstein v Commission, T‑262/97, EU:T:1998:107, paragraph 25, and of 5 February 2007, Sinara Handel v Council and Commission, T‑91/05, EU:T:2007:31, paragraph 110).

In the present case, the Court finds, first, that the applicant is requesting it to order the Commission to pay him ‘fair and equitable compensation’ as reparation for the harm which he feels he has suffered, without quantifying the amount of that harm or indicating factual elements that would enable the extent of that harm to be assessed. Second, the applicant has not established, or even indicated, that there are any particular circumstances which might justify his omission to quantify the harm allegedly suffered.

Consequently, it is clear that the applicant has failed to assess his harm, even approximately, with the result that the Court is not in a position to evaluate the extent of that harm.

–The causal link between the conduct alleged against the institution and the harm allegedly suffered

It is apparent from the Commission’s written submissions that, in its view, the first claim for damages is also too imprecise as regards the existence of the causal link between the refusal of access to the documents and the harm alleged.

In that regard, it must be pointed out that, in the application, the applicant does not expressly indicate the existence of such a causal link.

It is true that the applicant mentions that he was already in a state of stress and uncertainty on account of a ‘very serious allegation’ made against him and investigations to which he was subject. He explains that, in that context, the refusal to forward to him documents relating to that allegation and those investigations, together with his ‘feeling of complete inability to defend himself’, further aggravated his state of stress and uncertainty. Thus, the application does not completely lack details as to the existence of a causal link.

However, the existence of a causal link is addressed in a particularly implicit and fleeting manner. The applicant does not attempt to explain, in any detail, how the implied rejection decision has contributed to a further aggravation of his state of stress and uncertainty or to his feeling of being completely unable to defend himself. Likewise, he provides no clarification as to the nature of the allegation made against him. It follows that the Court is not in a position to assess whether the applicant has succeeded in demonstrating the existence of a causal link.

In those circumstances, by reason of the fact that the application does not contain any evaluation of the harm allegedly suffered or detailed elements on the existence of a causal link, the first claim for damages fails to meet the requirements set out in paragraphs 54 to 56 and 61 to 63 above.

Accordingly, the first claim for damages is manifestly inadmissible.

Compensation of the non-material harm allegedly suffered due to the delay in examining the request for access to the documents (second claim for damages)

The Commission raises a plea of inadmissibility, alleging that the application fails to meet the requirements of Article 76 of the Rules of Procedure. It maintains, in essence, that the application does not indicate with sufficient precision the manner in which the conditions relating to the existence of a sufficiently serious breach of a rule of EU law, damage or a causal link are met.

The applicant does not respond to that plea of inadmissibility.

In accordance with the case-law cited in paragraphs 55 and 56 above, it is necessary to examine whether the second claim for damages contains elements sufficiently precise as regards the three cumulative conditions necessary for engaging the liability of the European Union.

–The conduct alleged against the institution

It is apparent from the Commission’s written submissions that, in its view, the application is too imprecise as regards the conduct alleged against it.

In that regard, it should be noted that, in the application, the applicant merely mentions ‘constant’ and ‘repeated’ delays in the examination of his request for access to documents. Those delays, he claims, added to the ‘strenuous and stressful’ process of accessing his personal data, which lasted almost three years.

The applicant also criticises the Commission, first, for not having applied Article 6(3) of Regulation No 1049/2001 and, second, for having repeatedly extended the available deadline contrary to the provisions of that regulation.

The applicant does not, however, provide any explanation in support of those two complaints. First, he does not specify why it was necessary to apply Article 6(3) of Regulation No 1049/2001. Second, he does not indicate which other provisions of Regulation No 1049/2001 may have been infringed or which period may have been exceeded.

In those circumstances, the application does not make it possible for the Court to identify precisely the nature and duration of the alleged delays or to understand why those delays might be wrongful and, thus, such as to engage the liability of the European Union.

–The nature and extent of the harm allegedly suffered

The Commission argues that the application does not contain any evidence allowing the nature and extent of the harm to be assessed. In addition, it notes that the applicant has failed to quantify the damage allegedly suffered.

In the first place, it must be pointed out that, in the application, the applicant merely cites non-material harm related to the fact that he has had to work in a ‘stressful environment’ over a ‘long’ period, while being subject to ‘feelings of insecurity and distress’. It must therefore be stated that the elements put forward in relation to the nature of the non-material harm alleged are few in number and imprecise.

In the second place, it should be noted that the applicant, as with the first claim for damages, is merely requesting ‘fair and equitable compensation’ in respect of his harm, without quantifying the amount of that harm or indicating elements of fact that would enable the extent of that harm to be assessed. Nor has he set out the reasons justifying such an omission.

–The causal link between the conduct alleged against the institution and the harm allegedly suffered

The Commission argues that the application does not contain evidence to substantiate a sufficiently direct causal link between the delays alleged and the non-material harm allegedly suffered.

In that regard, it should be noted that, in the application, the applicant merely states that he has suffered damage as a result of the delays in the examination of his request for access to the documents. At no point does the applicant attempt to explain, in a detailed manner, how the delays alleged have contributed to deteriorating his working conditions and placing him in a state of stress, uncertainty and psychological suffering.

In those circumstances, the application does not indicate with sufficient precision the manner in which the three conditions for engaging the liability of the European Union are met. Consequently, the second claim for damages fails to meet the requirements set out in paragraphs 54 to 56 and 61 to 63 above.

Accordingly, the second claim for damages is inadmissible.

It follows from the foregoing, first, that there is no longer any need to adjudicate on the form of order seeking annulment of the implied rejection decision and, second, that the remainder of the action must be dismissed.

Costs

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

First, the Court finds that there is no need to adjudicate in relation to the implied rejection decision. Second, the applicant fails on the remainder of the action and the Commission is seeking only that the applicant be ordered to bear his own costs. In the circumstances of the case, therefore, it is appropriate to order each party to bear its own costs.

On those grounds,

hereby orders:

1.There is no longer any need to adjudicate on the form of order seeking annulment of the implied decision of the European Commission rejecting the confirmatory request of RE of 20 January 2017 for access to documents.

2.The action is dismissed as to the remainder.

3.Each party shall bear its own costs.

Luxembourg, 12 September 2018.

Registrar

President

Table of contents

Background to the dispute

Request for access to personal data

Application for access to documents

Procedure and forms of order sought

Law

The claim for annulment

The form of order directed against the implied rejection decision

The form of order directed against the decision of 24 May 2017

–The formulation of a modified form of order

–The presentation of modified pleas in law and arguments

The claim for damages

Compensation in respect of the non-material harm allegedly suffered due to the refusal of access to the documents (first claim for damages)

–The nature and extent of the harm allegedly suffered

–The causal link between the conduct alleged against the institution and the harm allegedly suffered

Compensation of the non-material harm allegedly suffered due to the delay in examining the request for access to the documents (second claim for damages)

–The conduct alleged against the institution

–The nature and extent of the harm allegedly suffered

–The causal link between the conduct alleged against the institution and the harm allegedly suffered

Costs

Language of the case: English.

1(Confidential information redacted)