(Action for annulment – Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the LIEN 97-2011 contract – Response to an initial request – Period allowed for bringing proceedings – Manifest inadmissibility – Implied refusal of access – Interest in bringing proceedings – Explicit decision adopted after the action was brought – No need to adjudicate)

Summary of the Order

(Art. 263, sixth para., TFEU; Rules of Procedure of the General Court, Art. 101(2))

(Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 8(3))

(Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001)

(Rules of Procedure of the General Court, Art. 87(6); European Parliament and Council Regulation No 1049/2001, Art. 8)

1.The two-month time-limit for bringing an action laid down in the sixth paragraph of Article 263 TFEU is a matter of public policy, having been established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the EU Courts must ascertain, of their own motion, whether that time-limit has been observed.

An application for the annulment of a Commission decision refusing a legal entity full access to the file relating to a contract concluded between that entity and the Commission must be regarded as out of time and therefore dismissed as inadmissible, without there being any need to examine the other pleas of inadmissibility raised by the Commission, where at the time the application was made, that time-limit had expired, at least one month and three days earlier, in view of the extension on account of distance by 10 days and, in accordance with Article 101(2) of the Rules of Procedure, the extension of the period where it would otherwise end on a Sunday or official holiday.

(see paras 31, 34-35)

2.Without calling into question the system of legal remedies established by the FEU Treaty, the mere silence of an institution is to be considered to be an implied decision, except where there are express provisions laying down a time-limit after which an implied decision will be deemed to have been taken by an institution which has been asked to state its position and prescribing the content of that decision.

Since Article 8(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents expressly establishes a time-limit after which, in the case of failure to reply to the confirmatory application, the institution concerned is considered to have adopted an implied decision and, moreover, defines the content of the implied decision, that is to say that it is to be considered to be a negative decision, and since the legislature has, in Article 8(3) of Regulation No 1049/2001, expressly provided that an action may be brought by the applicant against the implied decision of rejection pursuant to the provisions of the FEU Treaty, it must therefore be found that the silence of an institution following a confirmatory application made in accordance with Regulation No 1049/2001 is to be considered to be an implied decision of rejection against which an action may be brought pursuant to Article 263 TFEU.

(see paras 38, 40-42)

3.If the conditions governing the admissibility of an action for annulment must be judged, subject to the separate question of the loss of an interest in bringing proceedings, at the time when the application is lodged, in the interest of the proper administration of justice, that consideration cannot prevent the Court from finding that there is no longer any need to adjudicate on the action in the event that an applicant who initially had a legal interest in bringing proceedings has lost all personal interest in having the contested decision annulled on account of an event occurring after that application was lodged. For an applicant to be entitled to pursue an action seeking the annulment of a decision, he must retain a personal interest in the annulment of the contested decision, because, otherwise, if the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the General Court on the merits cannot bring him any benefit.

There is no longer any need to adjudicate on the action for annulment of an implied decision refusing access to documents, brought in accordance with Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, since the applicant no longer has a personal interest in that decision on account of a new Commission decision by which it explicitly responded to the confirmatory application and withdrawal of the implied decision of rejection may therefore be inferred.

(see paras 46, 50)

4.Where an institution has manifestly exceeded the prescribed time-limit, pursuant to Article 8 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, to reply to a confirmatory application, with the result that the applicant had no choice, in order to safeguard its rights, other than to bring an action for annulment of the implied decision of rejection, that institution must be ordered to pay its own costs and those incurred by the applicant relating to the heads of claim for annulment of the implied decision of rejection.

(see para. 55)

24 March 2011 (*)

(Action for annulment – Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the LIEN 97-2011 contract – Response to an initial request – Period allowed for bringing proceedings – Manifest inadmissibility – Implied refusal of access – Interest in bringing proceedings – Explicit decision adopted after the action was brought – No need to adjudicate)

In Case T‑36/10,

Internationaler Hilfsfonds eV, established in Rosbach (Germany), represented initially by H. Kaltenecker, and subsequently by R. Böhm, and lastly by H. Kaltenecker, lawyers,

applicant,

supported by

Kingdom of Denmark, represented initially by B. Weis Fogh and V. Pasternak Jørgensen, and subsequently by V. Pasternak Jørgensen, C. Vang and S. Juul Jørgensen, acting as Agents,

intervener,

European Commission, represented by P. Costa de Oliveira and T. Scharf, acting as Agents,

defendant,

APPLICATION for the annulment of the Commission’s decisions of 9 October 2009 and 1 December 2009 refusing Internationaler Hilfsfonds full access to the file relating to the LIEN 97-2011 contract,

THE GENERAL COURT (Fourth Chamber),

composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,

Registrar: E. Coulon,

makes the following

Legal context

‘(1) An application for access to a document shall be handled promptly…

(2) In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.’

‘(1) A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles [263 TFEU] and [228 TFEU].

(2) In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

(3) Failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the [TFEU].’

5. On 9 March 2002, the applicant made an application to the Commission seeking access to the documents relating to the contract. As that application was only partially satisfied, the applicant, by letter of 11 July 2002, addressed to the President of the Commission, applied for full access to the documents relating to the contract. Since the application did not give full satisfaction to the applicant, it lodged a complaint with the European Ombudsman criticising the Commission’s refusal to grant it full access to the documents relating to the contract. The complaint was registered under the reference 1874/2003/GG.

8. By application lodged at the Registry of the General Court on 11 April 2005, the applicant brought an action for annulment of the Commission’s decision of 14 February 2005, which was registered as Case T‑141/05. Following a plea of inadmissibility raised by the Commission pursuant to Article 114(1) of the Rules of Procedure of the General Court, the General Court, in its judgment of 5 June 2008 in Case T‑141/05 Internationaler Hilfsfonds v Commission, not published in the ECR, dismissed the application as inadmissible.

rejected the plea of inadmissibility raised by the Commission before the General Court and referred the case back to the General Court for judgment on the heads of claim of Internationaler Hilfsfonds eV for annulment of the Commission’s decision of 14 February 2005 refusing it access to certain documents in the Commission’s possession. The case referred back to the General Court, the reference number of which is now T‑141/05 RENV, is currently pending.

10By letters of 28 and 31 August 2009, the applicant made a new application for full access to the documents relating to the contract.

11By letter of 9 October 2009, the Commission responded to the new application for full access to the documents relating to the contract by stating that, in the light of the time elapsed since its decision on the application of 22 December 2004 for full access to the documents relating to the contract, which is the subject-matter of Case T‑141/05, it had carried out a new examination of the documents in the file at issue to which access had not been granted and, following that examination, it had decided to grant the applicant more extensive access, although not full access, to the said documents.

12By letter of 15 October 2009, received by the Commission on 19 October 2009, the applicant made an application by which it invited the Commission to re‑examine its response of 9 October 2009 to the new application for full access to the documents relating to the contract contained in the letters of 28 and 31 August 2009.

13On 10 November 2009, the Commission extended the prescribed time-limit for response to the applicant’s application of 15 October 2009 to 1 December 2009.

14By letter of 1 December 2009, received by the applicant on 2 December 2009, the Commission stated, first of all, that, since the applicant’s application of 15 October 2009 required a comprehensive examination of the many relevant documents and discussions with the other departments on this subject were ongoing, it was not, unfortunately, in a position to adopt a definitive decision. The Commission also added the following:

‘Under Article 8(3) of Regulation … No 1049/2001, you are entitled to bring proceedings before the [General Court] or to make a complaint to the Ombudsman. The letter of response is however nearly ready, with the result that you can expect a detailed response from the Commission in the near future. … You will be notified of the decision as soon as possible. …’

Procedure and forms of order sought

15By application lodged at the Registry of the General Court on 1 February 2010, the applicant brought the present action against the Commission’s decisions which include the letters of 9 October 2009 and 1 December 2009.

16On 5 May 2010, the Commission lodged at the Registry of the General Court a defence containing a request for a declaration of no need to adjudicate and an application for a measure of organisation of procedure.

17By letter lodged at the Registry of the General Court on 20 July 2010, the applicant produced, in accordance with Article 48 of the Rules of Procedure, new pleas in law, in order to include in its arguments in support of the present action arguments that are alleged to be similar to those which the General Court upheld in Case T‑111/07 Agrofert Holding v Commission [2010] ECR II‑0000.

18By order of the President of the Second Chamber of the General Court of 24 August 2010, the Kingdom of Denmark was granted leave to intervene in support of the forms of order sought by the applicant.

19Following a request for further information from the General Court inviting the parties to the proceedings to inform it of any comments and any conclusions drawn from the grounds and the operative part of the judgment in Joined Cases T‑355/04 and T‑446/04 Co-Frutta v Commission [2010] ECR II‑1, so far as concerns the applicant’s legal interest in bringing proceedings following the adoption of the decision of 29 April 2010 and proceedings being brought in Case T‑300/10, those parties submitted their replies within the prescribed time‑limit.

20In its reply by letter of 14 October 2010, the applicant claims that it retains a legal interest in bringing proceedings in the present case and that, supposing that the General Court decides otherwise, it should, in the light of the circumstances of the present case, order the Commission to bear its own costs and to pay those incurred by the applicant.

21In its reply by letter of 14 October 2010, the Commission claims, inter alia, that, since the applicant brought an application for annulment of the decision of 29 April 2010, it no longer retains a legal interest in bringing proceedings in the present case.

22In its reply by letter of 15 October 2010, the Kingdom of Denmark did not wish to make comments on the applicant’s legal interest in bringing proceedings.

The applicant, supported by the Kingdom of Denmark, claims that the Court should:

– annul the Commission’s decisions of 9 October 2009 and 1 December 2009 refusing Internationaler Hilfsfonds access to the undisclosed documents relating to the contract;

– order the Commission to pay the costs.

The Commission contends that the Court should:

– dismiss the action as inadmissible;

– should the Court decide that the action is directed against an implied negative decision, dismiss the action on the ground that it has no purpose;

– order the applicant to pay the costs.

Law

25It should be noted at the outset that, so far as concerns the purely factual context in which the two decisions contested by the applicant in the present case were adopted, it is not disputed by the parties that the letter of 9 October 2009 was addressed to the applicant in reply to its new application for full access to the documents relating to the contract contained in the letters of 28 and 31 August 2009. Moreover, it is not disputed that the letter of 1 December 2009 was addressed to the applicant following the submission of its application of 15 October 2009.

26In addition, as the applicant itself expressly acknowledged in the application and which is not disputed by the Commission, it must be found that, first, the applicant’s letters of 28 and 31 August 2009 were addressed to the Commission in accordance with Article 7 of Regulation No 1049/2001 and, therefore, must together be considered as the ‘initial application’ within the meaning of that article (‘the initial application’) and, second, the letter of 15 October 2009 was addressed to the Commission in accordance with Article 8 of that regulation and must therefore be considered as the ‘confirmatory application’ within the meaning of that article (‘the confirmatory application’).

27With regard to the foregoing considerations, an examination should be carried out, first, on the admissibility of the heads of claim of the applicant for annulment of the Commission’s decision contained in the letter of 9 October 2009 and, second, as to whether the applicant retains a legal interest in bringing proceedings with regard to the heads of claim for annulment of the Commission’s decision contained in the letter of 1 December 2009.

Admissibility of the heads of claim against the Commission’s decision of 9 October 2009

28Under Article 111 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.

29In the present case, the Court considers that it has sufficient information, in the form of the documents in the case, and decides, pursuant to that article, to give its decision on the admissibility of the heads of claim for annulment of the Commission’s decision of 9 October 2009 without taking further steps in the proceedings.

30The sixth paragraph of Article 263 TFEU provides that proceedings for annulment are to be instituted within two months of the publication of the 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 102(2) of the Rules of Procedure, that period must be extended on account of distance by a single period of 10 days.

31In accordance with settled case-law, the prescribed time-limit for bringing an action is a matter of public policy, having been established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the EU Courts must ascertain, of their own motion, whether that time-limit has been observed (Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21, and Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).

32In the present case, it is common ground that, in its confirmatory application of 15 October 2010, the applicant invited the Commission to reconsider its position, set out in its letter of 9 October 2009, with regard to the applicant’s new application. Without there being any need to determine the exact date on which the letter of 9 October 2009 was notified to the applicant or indeed on which date it came to the applicant’s knowledge, it should therefore be stated that the date on which the applicant was notified or became aware was clearly 15 October 2010 at the latest, the date on which the applicant made its confirmatory application.

33Moreover, the applicant has not demonstrated, or even alleged, the existence of unforeseeable circumstances or force majeure so as to permit a derogation from the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, which applies to proceedings before the General Court by virtue of Article 53 thereof.

34In the light of the foregoing, the period of two months prescribed for bringing an action began to run, in accordance with Article 101(1)(a) of the Rules of Procedure, on 16 October 2009 at the latest, that is to say the day after the date on which the applicant was notified or became aware of the Commission’s letter of 9 October 2009. The period therefore expired, at the latest, on 29 December 2009, in view of the extension on account of distance by 10 days and, in accordance with Article 101(2) of the Rules of Procedure, the extension of the period where it would otherwise end on a Sunday or official holiday, or, at least, one month and three days before the present action was brought, in so far as it challenges the Commission’s decision of 9 October 2009, on 1 February 2010.

35It follows that the present action, in so far as it seeks the annulment of the decision which includes the letter of 9 October 2009, must be regarded as out of time and therefore dismissed as inadmissible, without there being any need to examine the other pleas of inadmissibility raised by the Commission.

The applicant’s legal interest in bringing proceedings with regard to the heads of claim against the Commission’s decision of 1 December 2009

The subject-matter of the heads of claim against the Commission’s decision of 1 December 2009

36The parties disagree as to whether the heads of claim for annulment of the Commission’s decision of 1 December 2009 are directed at an implied negative decision rejecting the confirmatory application (‘the implied decision of rejection’).

37In that regard, first of all, the Court finds that, in the present case, in its letter of 1 December 2009, the Commission informed the applicant that it was not in a position to adopt a definitive decision, within the prescribed time-limit, on the confirmatory application. Similarly, the Commission, in that letter, informed the applicant that, in accordance with Article 8(3) of Regulation No 1049/2001, it is entitled to bring proceedings before the General Court or to make a complaint to the Ombudsman. In the light of the very wording of the letter of 1 December 2009, it must thus be held that the Commission not only established its own inability to reply, within the prescribed period and following the extension thereof, to the confirmatory application, but, furthermore, took steps to draw attention to the legal remedies available to the applicant, under Article 8(3) of Regulation No 1049/2001, in the case of failure by that institution to reply to the confirmatory application. Consequently, it must be held, as the applicant argues in its reply, that, in its letter of 1 December 2009, the Commission was mainly content, whilst informing the applicant, incidentally, that it could ‘expect a detailed response from the Commission in the near future’, to acknowledge that it was not in a position to adopt a definitive decision on the confirmatory application and that an action might be brought against that failure to reply.

38Second, the Court points out that, in accordance with settled case-law, in principle, both the Court of Justice and the General Court refuse to acknowledge, without calling into question the system of legal remedies established by the TFEU, that the mere silence of an institution is to be considered to be an implied decision, except where there are express provisions laying down a time-limit after which an implied decision will be deemed to have been taken by an institution which has been asked to state its position and prescribing the content of that decision (Case C‑123/03 P Commission v Greencore [2005] ECR I‑0000, paragraph 21, and Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).

39In the present case, the Court considers that it has sufficient information, in the form of the documents in the case, and decides, pursuant to that article, to give its decision on the admissibility of the heads of claim for annulment of the Commission’s decision of 9 October 2009 without taking further steps in the proceedings.

40In the present case, it is common ground that, in its confirmatory application of 15 October 2010, the applicant invited the Commission to reconsider its position, set out in its letter of 9 October 2009, with regard to the applicant’s new application. Without there being any need to determine the exact date on which the letter of 9 October 2009 was notified to the applicant or indeed on which date it came to the applicant’s knowledge, it should therefore be stated that the date on which the applicant was notified or became aware was clearly 15 October 2010 at the latest, the date on which the applicant made its confirmatory application.

41Moreover, the applicant has not demonstrated, or even alleged, the existence of unforeseeable circumstances or force majeure so as to permit a derogation from the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, which applies to proceedings before the General Court by virtue of Article 53 thereof.

42In the light of the foregoing, the period of two months prescribed for bringing an action began to run, in accordance with Article 101(1)(a) of the Rules of Procedure, on 16 October 2009 at the latest, that is to say the day after the date on which the applicant was notified or became aware of the Commission’s letter of 9 October 2009. The period therefore expired, at the latest, on 29 December 2009, in view of the extension on account of distance by 10 days and, in accordance with Article 101(2) of the Rules of Procedure, the extension of the period where it would otherwise end on a Sunday or official holiday, or, at least, one month and three days before the present action was brought, in so far as it challenges the Commission’s decision of 9 October 2009, on 1 February 2010.

43It follows that the present action, in so far as it seeks the annulment of the decision which includes the letter of 9 October 2009, must be regarded as out of time and therefore dismissed as inadmissible, without there being any need to examine the other pleas of inadmissibility raised by the Commission.

The applicant’s legal interest in bringing proceedings with regard to the heads of claim against the Commission’s decision of 1 December 2009

The subject-matter of the heads of claim against the Commission’s decision of 1 December 2009

44The parties disagree as to whether the heads of claim for annulment of the Commission’s decision of 1 December 2009 are directed at an implied negative decision rejecting the confirmatory application (‘the implied decision of rejection’).

45In that regard, first of all, the Court finds that, in the present case, in its letter of 1 December 2009, the Commission informed the applicant that it was not in a position to adopt a definitive decision, within the prescribed time-limit, on the confirmatory application. Similarly, the Commission, in that letter, informed the applicant that, in accordance with Article 8(3) of Regulation No 1049/2001, it is entitled to bring proceedings before the General Court or to make a complaint to the Ombudsman. In the light of the very wording of the letter of 1 December 2009, it must thus be held that the Commission not only established its own inability to reply, within the prescribed period and following the extension thereof, to the confirmatory application, but, furthermore, took steps to draw attention to the legal remedies available to the applicant, under Article 8(3) of Regulation No 1049/2001, in the case of failure by that institution to reply to the confirmatory application. Consequently, it must be held, as the applicant argues in its reply, that, in its letter of 1 December 2009, the Commission was mainly content, whilst informing the applicant, incidentally, that it could ‘expect a detailed response from the Commission in the near future’, to acknowledge that it was not in a position to adopt a definitive decision on the confirmatory application and that an action might be brought against that failure to reply.

46Second, the Court points out that, in accordance with settled case-law, in principle, both the Court of Justice and the General Court refuse to acknowledge, without calling into question the system of legal remedies established by the TFEU, that the mere silence of an institution is to be considered to be an implied decision, except where there are express provisions laying down a time-limit after which an implied decision will be deemed to have been taken by an institution which has been asked to state its position and prescribing the content of that decision (Case C‑123/03 P Commission v Greencore [2005] ECR I‑0000, paragraph 21, and Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).