JUDGMENT OF THE COURT
11 January 2000 (1)
(Appeal - Access to information - Commission Decision
94/90/ECSC, EC, Euratom - Scope of the exception relating to
protection of the public interest - Inadequate statement of reasons
- Article 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms - Principles of equality
between the parties and rights of the defence)
In Joined Cases C-174/98 P and C-189/98 P,
Kingdom of the Netherlands, represented by M.A. Fierstra
and C. Wissels, Deputy Legal Advisers in the Ministry of Foreign
Affairs, acting as Agents, with an address for service in Luxembourg
at the Netherlands Embassy, 5 Rue C.M. Spoo,
appellant in Case C-174/98 P
and intervener at first instance,
and
Gerard van der Wal, residing in Crainhem, Belgium,
represented by L.Y.J.M. Parret, with an address for service in
Luxembourg at the Chambers of A. May, 31 Grand-Rue,
appellant in Case C-189/98 P
and applicant at first instance,
APPEAL against the judgment of the Court of First Instance
of the European Communities (Fourth Chamber) of 19 March 1998
in Case T-83/96 Van der Wal v Commission [1998]
ECR II-545, seeking to have that judgment set aside,
the other party to the proceedings being:
Commission of the European Communities, represented
by W. Wils and U. Wölker, of its Legal Service, acting as
Agents, with an address for service in Luxembourg at the office
of C. Gómez de la Cruz, of the same service, Wagner Centre,
Kirchberg,
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, J.C.
Moitinho de Almeida (Rapporteur), D.A.O. Edward and L. Sevón
(Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann, G. Hirsch,
H. Ragnemalm and M. Wathelet, Judges,
Advocate General: G. Cosmas,
Registrar: H. von Holstein, Deputy Registrar,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing
on 11 May 1999,
after hearing the Opinion of the Advocate General at the sitting
on 6 July 1999,
gives the following
Judgment
-
- 1.
- By applications lodged at the Court Registry on 11 and 19
May 1998 respectively, the Kingdom of the Netherlands (Case C-174/98
P) and Mr Van der Wal (Case C-189/98 P) lodged an appeal under
Article 49 of the EC Statute of the Court of Justice against
the judgment of the Court of First Instance of 19 March 1998
in Case T-83/96 Van der Wal v Commission [1998]
ECR II-545 ('the contested judgment') rejecting the application
for the annulment of the Commission decision of 29 March 1996,
refusing access to certain documents ('the contested decision').
The action before the Court of First Instance
- 2.
- So far as the legal background is concerned, this was described
by the Court of First Instance as follows:
'1In the Final Act of the Treaty on European Union signed
at Maastricht on 7 February 1992 the Member States incorporated
a Declaration (No 17) on the right of access to information in
these terms:
"The Conference considers that transparency of the decision-making
process strengthens the democratic nature of the institutions
and the public's confidence in the administration. The Conference
accordingly recommends that the Commission submit to the Council
no later than 1993 a report on measures designed to improve public
access to the information available to the institutions."
2In response to that Declaration, the Commission published
Communication 93/C 156/05 which it sent to the Council, the Parliament
and the Economic and Social Committee on 5 May 1993, concerning
public access to the institutions' documents (OJ 1993 C 156,
p. 5). On 2 June 1993 it adopted Communication 93/C 166/04 on
openness in the Community (OJ 1993 C 166, p. 4).
3In the context of those preliminary steps towards implementation
of the principle of transparency, on 6 December 1993 the Council
and the Commission approved a code of conduct concerning public
access to Council and Commission documents (OJ 1993 L 340, p.
41, hereinafter "the Code of Conduct"), which sought
to establish the principles governing access to documents held
by those institutions.
4Accordingly, in implementation of that agreement the Commission
adopted, on 8 February 1994, on the basis of Article 162 of the
EC Treaty, Decision 94/90/ECSC, EC, Euratom on public access
to Commission documents (OJ 1994 L 46, p. 58, hereinafter "Decision
94/90"), under Article 1 of which the Code of Conduct was
formally adopted. The text of that Code is set out in an Annex
to Decision 94/90.
5The Code of Conduct as thus adopted by the Commission sets
out a general principle in these terms:
"The public will have the widest possible access to documents
held by the Commission and the Council."
6For those purposes the term "document" is defined
in the Code of Conduct as meaning "any written text, whatever
its medium, which contains existing data and is held by the Commission
or the Council".
7After briefly setting out the rules governing the lodging
and processing of requests for documents, the Code of Conduct
describes the procedure to be followed, where it is proposed
to reject a request, in these terms:
"Where the relevant departments of the institution concerned
intend to advise the institution to reject an application, they
will inform the applicant thereof and tell him that he has one
month to make a confirmatory application to the institution for
that position to be reconsidered, failing which he will be deemed
to have withdrawn his original application.
If a confirmatory application is submitted, and if the institution
concerned decides to refuse to release the document, that decision,
which must be made within a month of submission of the confirmatory
application, will be notified in writing to the applicant as
soon as possible. The grounds of the decision must be given,
and the decision must indicate the means of redress that are
available, i.e. judicial proceedings and complaints to the ombudsman
under the conditions specified in, respectively, Articles 173
and 138[e] of the Treaty establishing the European Community."
8The Code of Conduct describes the factors which may be invoked
by an institution to ground the rejection of a request for access
to documents in these terms:
"The institutions will refuse access to any document
where disclosure could undermine:
-the protection of the public interest (public security, international
relations, monetary stability, court proceedings, inspections
and investigations),
-the protection of the individual and of privacy,
-the protection of commercial and industrial secrecy,
-the protection of the Community's financial interests,
-the protection of confidentiality as requested by the natural
or legal persons that supplied the information or as required
by the legislation of the Member State that supplied the information.
They may also refuse access in order to protect the institution's
interest in the confidentiality of its proceedings."
9In 1993 the Commission adopted Notice 93/C 39/05 on cooperation
between national courts and the Commission in applying Articles
85 and 86 of the EC Treaty (OJ 1993 C 39, p. 6; hereinafter "the
Notice") ...'
- 3.
- As regards the facts, the contested judgment states:
'10The XXIVth Report on Competition Policy (1994) (hereinafter
"the XXIVth Report") stated that the Commission had
received a number of questions from national courts ...
11By letter dated 23 January 1996 the applicant, in his capacity
as a lawyer and member of a firm which deals with cases raising
questions of competition at Community level, requested copies
of some of the Commission's replies to those questions, namely:
(1)The letter dated 2 August 1993 from the Director-General
of the Directorate-General for Competition (DG IV) to the Oberlandesgericht
(Higher Regional Court), Düsseldorf, concerning the compatibility
of a distribution agreement with Commission Regulation (EEC)
No 1983/83 of 22 June 1983 on the application of Article 85(3)
of the Treaty to categories of exclusive distribution agreements
(OJ 1983 L 173, p. 1);
(2)The letter dated 13 September 1994 from Commissioner van
Miert to the Tribunal d'Instance (District Court), St Brieuc,
concerning the interpretation of Council Regulation (EEC) No
26 of 4 April 1962 applying certain rules of competition to production
of and trade in agricultural products (OJ, English Special Edition
1959-1962, p. 129); and
(3)The letter sent by the Commission in early 1995 to the
Cour d'Appel (Court of Appeal), Paris, which had asked it for
an opinion on contractual provisions concerning sales targets
for motor vehicle agents in the light of Article 85(1) of the
Treaty and Commission Regulation (EEC) No 123/85 of 12 December
1984 on the application of Article 85(3) of the Treaty to certain
categories of motor vehicle distribution and servicing agreements
(OJ 1985 L 15, p. 16).
12By letter dated 23 February 1996 the Director-General of
DG IV refused the applicant's request on the ground that disclosure
of the requested letters would be detrimental to "the protection
of the public interest (court proceedings)". He explained
that:
"... When the Commission replies to questions submitted
to it by national courts before which an action has been brought
for the purposes of resolving a dispute, the Commission intervenes
as an 'amicus curiae'. It is expected to show a certain
reserve not only as regards acceptance of the manner in which
the questions are submitted to it but also as regards the use
which it makes of the replies to those questions.
I consider that, once the replies have been sent, they form
an integral part of the proceedings and are in the hands of the
court which raised the question. The points of both law and fact
contained in the replies must ... be regarded, in the context
of the pending proceedings, as part of the national court's file.
The Commission has sent the replies to that national court and
the decision whether to publish that information and/or make
it available to third parties is a matter primarily for the national
court to which the reply is sent.
..."
13The Director-General also referred to the need to maintain
a relationship of trust between the Community executive and the
national court authorities in the Member States. Such considerations,
which are valid in all cases, must apply even more forcibly in
cases such as the present, where no final judgment has yet been
given in respect of the matters dealt with in the questions submitted
to the Commission.
14By letter dated 29 February 1996 the applicant sent a confirmatory
application to the Secretariat-General of the Commission stating,
inter alia, that he did not see how the conduct of the
national proceedings could be undermined if information of a
non-confidential nature provided by the Commission to the national
court in the context of application of Community competition
law came to the attention of third parties.
15By letter dated 29 March 1996 (hereinafter "the contested
decision") the Secretary-General of the Commission confirmed
DG IV's decision "on the ground that disclosure of the replies
could undermine the protection of the public interest and, more
specifically, the sound administration of justice". He continued
as follows:
"... there is a risk that disclosure of the replies requested,
which comprise legal analyses, could undermine the relationship
and the necessary cooperation between the Commission and national
courts. A court which has submitted a question to the Commission
would obviously not appreciate the reply being disclosed, particularly
where the question is relevant to a pending case.
..."
16The Secretary-General added that the procedure in the present
case differed considerably from that under Article 177 of the
Treaty to which the applicant had referred in his confirmatory
application.'
- 4.
- It is in those circumstances that, on 29 May 1996, Mr Van
der Wal brought an action for the annulment of the contested
decision, which refused him access to the letters referred to
above.
- 5.
- By order of 9 December 1996, the Court of First Instance
granted the Netherlands Government leave to intervene in support
of the form of order sought by Mr Van der Wal.
The appeal
- 6.
- By the contested judgment the Court of First Instance dismissed
the action. The Netherlands Government and Mr Van der Wal have
each lodged an appeal, based, respectively, on the following
pleas in law:
-infringement of Decision 94/90 and the combined provisions
of Articles 33 and 44 of the EC Statute of the Court of Justice;
-infringement of Decision 94/90, the European Convention for
the Protection of Human Rights and Fundamental Freedoms ('the
ECHR'), the duty to state reasons and the principle of equality
between the parties and of the rights of the defence.
The plea alleging infringement of Decision 94/90
The judgment of the Court of First Instance
- 7.
- In concluding that the Commission had correctly relied on
the protection of the public interest as a ground for refusing
access to the documents in question, the Court of First Instance
based its reasoning on Article 6 of the ECHR. In that respect,
it stated at paragraph 47 of the contested judgment that 'The
right of every person to a fair hearing by an independent tribunal
means, inter alia, that both national and Community courts
must be free to apply their own rules of procedure concerning
the powers of the judge, the conduct of the proceedings in general
and the confidentiality of the documents on the file in particular.'
It added:
'48The exception to the general principle of access to Commission
documents based on the protection of the public interest when
the documents at issue are connected with court proceedings,
enshrined in Decision 94/90, is designed to ensure respect for
that fundamental right. The scope of that exception is therefore
not restricted solely to the protection of the interests of the
parties in the context of specific court proceedings, but encompasses
the procedural autonomy of national and Community courts (see
paragraph 47 above).
49Its scope therefore entitles the Commission to rely on that
exception even when it is not itself party to the court proceedings
which, in the particular case, justify the protection of the
public interest.
50In that respect, a distinction must be drawn between documents
drafted by the Commission for the sole purposes of a particular
court case, such as the letters in the present case, and other
documents which exist independently of such proceedings. Application
of the exception based on the protection of the public interest
can be justified only in respect of the first category of documents,
because the decision whether or not to grant access to such documents
is a matter for the appropriate national court alone, in accordance
with the essential rationale of the exception based on the protection
of the public interest in the context of court proceedings (see
paragraph 48 above).
51When, in the context of proceedings pending before it, a
national court requests certain information from the Commission
on the basis of the cooperation provided for by the Notice, the
Commission's reply is expressly provided for the purposes of
the court proceedings in question. In such circumstances, the
protection of the public interest must be regarded as requiring
the Commission to refuse access to that information, and therefore
to the documents containing it, because the decision concerning
access to such information is a matter to be decided exclusively
by the appropriate national court on the basis of its own national
procedural law for as long as the court proceedings giving rise
to its incorporation in a Commission document are pending.
52In this case, the applicant requested the production of
three letters, all concerning pending court proceedings. The
applicant did not claim that those letters merely reproduced
information which was otherwise accessible on the basis of Decision
94/90. In that respect, furthermore, it should be noted that
the first letter related to the compatibility of a distribution
agreement with Regulation No 1983/83, the second concerned the
application of Regulation No 26/62 and the third concerned the
interpretation of Regulation No 123/85 (see paragraph 11 above).
Those letters thus concerned points of law raised in the context
of specific pending proceedings.'
Arguments of the parties
- 8.
- The appellants argue essentially that the public-interest
exception does not allow a whole category of documents to be
excluded from the scope of Decision 94/90.
They maintain that that exception requires the Commission
to verify in respect of each document whether, having regard
to the information it contains, its disclosure is in fact capable
of harming the public interest. In their submission, the interpretation
by the Court of First Instance of Decision 94/90 is a wide interpretation
which has no legal basis and undermines the uniform application
of Community law.
- 9.
- As regards the principle of procedural autonomy which the
contested judgment derives from Article 6 of the ECHR, the appellants
maintain that the Court of First Instance has not explained how
the independence of national courts could be called into question
if the Commission were obliged to verify on a case-by-case basis
whether the disclosure of a document was capable of harming the
public interest. They state in that respect that the contested
judgment does not contain any explanation concerning the limitation
of the principle of procedural autonomy to documents drafted
by the Commission for the purposes of particular court proceedings
for as long as those proceedings are pending.
- 10.
- The Commission argues that the principle of procedural autonomy
relied on by the Court of First Instance in interpreting Decision
94/90 must be understood in the light of the case-law of the
Court of Justice according to which cooperation between the Commission
and the national courts in applying Articles 85(1) and 86 of
the EC Treaty (now Articles 81(1) and 82 EC) takes place within
the limits of the applicable national law on procedure (Case
C-234/89 Delimitis v Henninger Bräu [1991]
ECR I-935, paragraph 53). Within the framework of that cooperation,
the Commission's role is secondary; it is for the national court
to decide, first, whether it is necessary to consult the Commission,
secondly, what questions to put to it, and, finally, what action
should be taken in response to the answers obtained. According
to the Commission, it follows that it is solely for the national
court to determine, on the basis of its procedural law, whether,
at what time, and under what conditions, the Commission's reply
may be disclosed to third parties.
- 11.
- The Commission adds that the reference in the contested judgment
to the ECHR constitutes only one factor in support of the principle
of procedural autonomy according to which both national and Community
courts must be free to apply their own rules of procedure concerning
the powers of the judge, the conduct of the proceedings in general
and the confidentiality of the documents on the file in particular.
If paragraphs 45 and 46 of the contested judgment were removed,
the judgment would remain substantively unchanged. The limitation
placed on that principle by the Court of First Instance, to the
effect that it applies only to documents drafted by the Commission
for the purposes of particular proceedings for as long as those
proceedings are pending, represents an incidental opinion, which,
moreover, is not formulated as categorically as the appellants
claim.
- 12.
- In the Commission's submission, therefore, it is in the light
of the above that Decision 94/90 must be interpreted. The exception
based on protection of the
public interest (court proceedings) covers all cases in which
the disclosure of the documents in question is a matter for the
national courts pursuant to their own rules of procedure.
- 13.
- As regards the argument that the Court of First Instance's
interpretation of Decision 94/90 undermines the uniform application
of Community law, the Commission maintains that the application
of that decision is always identical and that it is the application
of different national rules which may lead to access to documents
being granted in some Member States and not in others.
Findings of the Court
- 14.
- Having deduced from Article 6 of the ECHR that the right
of every person to a fair hearing by an independent tribunal
means, inter alia, that both national and Community courts
must be free to apply their own rules of procedure concerning
the powers of the judge, the conduct of the proceedings in general
and the confidentiality of the documents on the file in particular,
the Court of First Instance held, in paragraph 48, that '[T]he
exception to the general principle of access to Commission documents
based on the protection of the public interest when the documents
at issue are connected with court proceedings, enshrined in Decision
94/90, is designed to ensure respect for that fundamental right'.
- 15.
- However, according to the contested judgment, the principle
of procedural autonomy thus deduced from Article 6 of the ECHR
does not concern all the documents in the proceedings. It applies
only to documents written by the Commission for the sole purposes
of a particular court case, thus excluding other documents which
exist independently of such proceedings (paragraph 50), and only
while the matter is pending (paragraph 51).
- 16.
- As regards documents covered by the principle of procedural
autonomy thus conceived, the contested judgment holds that it
is for national courts alone to rule on requests for access to
those documents on the basis of their national procedural law
(paragraph 51).
- 17.
- It is true that the general principle of Community law under
which every person has a right to a fair trial, inspired by Article
6 of the ECHR (see, inter alia, Case C-185/95 P Baustahlgewebe
v Commission [1998] ECR I-8417, paragraphs 20 and 21),
comprises the right to a tribunal that is independent of the
executive power in particular (on that point, see in particular
the judgment of the European Court of Human Rights of 18 June
1971 in the case of De Wilde, Ooms and Versyp v Belgium,
Series A, No 12, paragraph 78). However, it is not possible to
deduce from that right, as the Court of First Instance did in
paragraphs 47 to 51 of the contested judgment, that the court
hearing a dispute is necessarily the only body empowered to grant
access to the documents in the proceedings in question. Nor can
such a general principle be deduced from the constitutional traditions
common to the Member States.
- 18.
- The power to grant such access also cannot be deduced from
Article 6 of the ECHR, even limited to documents drafted with
a view to the court proceedings in question.
- 19.
- Moreover, the risks that the independence of the court might
be undermined are sufficiently taken into account by Decision
94/90 and by the protection afforded by the courts at Community
level with respect to measures of the Commission granting access
to documents which it holds.
- 20.
- In order to determine under what conditions, in the context
of its cooperation with national courts with a view to the application
by them of Articles 85 and 86 of the Treaty, the Commission must
refuse access to documents which it holds, on the ground that
the protection of the public interest, within the meaning of
Decision 94/90, may be undermined, it is necessary to consider
the manner in which such cooperation works in practice.
- 21.
- As the Notice shows, those courts may need information of
a procedural nature 'to enable them to discover whether a certain
case is pending before the Commission, whether a case has been
the subject of a notification, whether the Commission has officially
initiated a procedure or whether it has already taken a position
through an official decision or through a comfort letter sent
by its services. If necessary, national courts may also ask the
Commission to give an opinion as to how much time is likely to
be required for granting or refusing individual exemption for
notified agreements or practices, so as to be able to determine
the conditions for any decision to suspend proceedings or whether
interim measures need to be adopted' (paragraph 37 of the Notice).
- 22.
- According to paragraph 38 of the Notice, national courts
may also consult the Commission on points of law where the application
of Articles 85 and 86 causes them particular difficulties. Such
difficulties relate in particular to the conditions for applying
those articles as regards the effect on trade between Member
States and as regards the question whether the restriction of
competition resulting from the practices specified in these provisions
is appreciable. In addition, where national courts have doubts
as to whether an agreement, decision or concerted practice in
issue before them is eligible for an individual exemption, they
may ask the Commission to provide them with an interim opinion.
- 23.
- Lastly, it follows from paragraph 40 of the Notice that national
courts can obtain information from the Commission regarding factual
data: statistics, market studies and economic analyses.
- 24.
- It follows from the above that documents supplied by the
Commission to national courts are often documents which it already
possessed or which, although drafted with a view to particular
proceedings, merely refer to the earlier documents, or in which
the Commission merely expresses an opinion of a general nature,
independent of the data relating to the case pending before the
national court. In relation to those documents, the Commission
must assess in each individual case whether they fall within
the exceptions listed in the code of conduct adopted by Decision
94/90.
- 25.
- Documents supplied by the Commission may also contain legal
or economic analyses, drafted on the basis of data supplied by
the national court. In those cases, the Commission acts as a
legal or economic adviser to the national court and documents
drafted in the exercise of that function must be subject to national
procedural rules in the same way as any other expert report,
in particular as regards disclosure.
- 26.
- In those cases, national law may preclude the disclosure
of those documents and compliance with that law may be regarded
as a public interest worthy of protection under the exceptions
provided for by Decision 94/90.
- 27.
- That is, however, not enough to exonerate the Commission
entirely from its obligation to disclose those documents. In
so far as they are held by the Commission, such documents fall
within the scope of Decision 94/90, which provides for the widest
public access possible. Any exception to that right of access
must therefore be interpreted and applied strictly.
- 28.
- Consequently, the Commission does not discharge its duty
merely by refusing any request for access to the documents in
question. Compliance with national procedural rules is sufficiently
safeguarded if the Commission ensures that disclosure of the
documents does not constitute an infringement of national law.
In the event of doubt, it must consult the national court and
refuse access only if that court objects to disclosure of the
documents.
- 29.
- Moreover, that procedure makes it unnecessary for the applicant
to make a request first to the competent national court and subsequently
to the Commission if that court considers that national procedural
law does not preclude disclosure of the documents requested,
but considers that the application of Community rules may lead
to a different solution. The procedure is therefore also consistent
with the requirements of good administration.
- 30.
- It follows that, by interpreting Decision 94/90 as meaning
that the exception based on protection of the public interest
in the context of court proceedings obliges the Commission to
refuse access to documents which it drafted solely for the purposes
of such proceedings, the Court of First Instance erred in law,
with the result that the plea alleging infringement of that decision
is well founded.
- 31.
- Under Article 54 of the EC Statute of the Court of Justice,
where the appeal is well founded, the Court of Justice is to
set aside the decision of the Court of First Instance. It may
then itself give final judgment in the matter, where the state
of the proceedings so permits. That is so in this case.
The action brought before the Court of First Instance for
annulment of the contested decision
- 32.
- It follows from paragraphs 14 to 29 of this judgment that,
where the Commission has received a request for access to documents
which it has supplied to a national court in the context of its
cooperation with national courts in applying Articles 85 and
86 of the Treaty, it must verify whether those documents constitute
legal or economic analyses as defined in paragraph 25 of this
judgment. If the documents in question are of that kind, the
Commission must ensure that their disclosure is not contrary
to national law. In case of doubt, it must consult the national
court and refuse access only if that court objects to disclosure.
- 33.
- Thus, in refusing access to the documents requested without
verifying whether they constituted legal or economic analyses
drafted on the basis of data supplied by the national court,
and, if that were so, without ensuring that their disclosure
was not contrary to national law, the Commission infringed Decision
94/90, with the result that the contested decision must be annulled.
Costs
- 34.
- Under the first paragraph of Article 122 of the Rules of
Procedure, where the appeal is well founded and the Court itself
gives final judgment in the case, the Court is to make a decision
as to costs. Under Article 69(2) of the Rules of Procedure, applicable
to appeals by virtue of Article 118, the unsuccessful party is
to be ordered to pay the costs, if they have been applied for
in the successful party's pleadings. Under Article 69(4) of the
Rules of Procedure, Member States and institutions which intervene
in the proceedings are to bear their own costs. Since the Commission
has been unsuccessful, it must be ordered to pay, in addition
to its own costs, all the costs incurred in the proceedings before
the Court of First Instance and the Court of Justice by the appellants
and by Mr Van der Wal as intervener in Case C-174/98 P. The Kingdom
of the Netherlands is ordered to bear its own costs, as intervener
in Case T-83/96 relating to the proceedings before the Court
of First Instance and as intervener in Case C-189/98 P relating
to these proceedings.
On those grounds,
THE COURT
hereby:
1.Sets aside the judgment of the Court of First Instance
of the European Communities of 19 March 1998 in Case T-83/96
Van der Wal v Commission;
2.Annuls the Commission's decision of 29 March 1996 refusing
access to certain documents;
3.Orders the Commission of the European Communities to
pay the costs relating to both sets of proceedings;
4.Orders the Kingdom of the Netherlands to bear its own
costs, as intervener in Case T-83/96, in the proceedings before
the Court of First Instance and, as intervener in Case C-189/98
P, in these proceedings.
Delivered in open court in Luxembourg on 11 January 2000.