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1 Commission - Public right of access to Commission documents
- Decision 94/90 - Exceptions to the principle of access to documents
- Protection of the public interest - Court proceedings - Scope
- Cooperation between the Commission and national courts on the
basis of Notice 93/C 39/05 on the application of the competition
rules
(Commission Decision 94/90; Commission Notice 93/C 39/05)
2 Acts of the institutions - Statement of reasons - Obligation
- Scope - Decision confirming an initial decision
(EC Treaty, Art. 190)
3 Decision 94/90 on public access to Commission documents provides,
as an exception to the general principle of the right of access
to documents, that the institutions are to refuse access to any
document where disclosure could undermine, inter alia, `the protection
of the public interest (... court proceedings ...)'. That exception
is intended to ensure general respect for the fundamental right
of every person to a fair hearing by an independent tribunal
which means 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
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 the aforementioned courts, so that it entitles the
Commission to rely on that exception even when it is not itself
party to the court proceedings which justify the protection of
the public interest.
Application of that exception can be justified only in respect
of documents drafted by the Commission for the sole purposes
of a particular court case, to the exclusion of other documents
which exist independently of such proceedings, since the decision
whether or not to grant access to the first category of documents
is a matter for the appropriate national court alone, in accordance
with the essential rationale of the aforementioned exception.
As regards documents sent by the Commission to a national court
in response to a request for information from the latter in the
context of cooperation based on Notice 93/C 39/05 on the application
of Articles 85 and 86 of the Treaty, the protection of the public
interest requires 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.
4 The duty to give reasons for a decision laid down in Article
190 of the Treaty has a two-fold purpose, namely, on the one
hand, to permit interested parties to know the justification
for the measure so as to enable them to protect their rights
and, on the other, to enable the Community judicature to exercise
its power to review the legality of the decision. The question
as to whether a statement of reasons satisfies those requirements
must be assessed with reference not only to its wording but also
to its context and the whole body of legal rules governing the
matter in question.
When the institution rejects an application for access to documents,
and states the reasons, and the party concerned submits a confirmatory
application seeking to have that rejection reconsidered, and
the institution's reply confirms the rejection on the same grounds,
it is appropriate to consider the sufficiency of the reasons
given in the light of all the exchanges between the institution
and the applicant, taking into account also the information already
available to the applicant.
In Case T-83/96,
Gerard van der Wal, residing in Kraainem, Belgium, represented
initially by Caroline P. Bleeker and Laura Y.J.M. Parret, of
the Hague Bar and the Brussels Bar respectively, and subsequently
by Laura Y.J.M. Parret, with an address for service in Luxembourg
at the Chambers of Aloyse May, 31 Grand-Rue,
applicant,
supported by
Kingdom of the Netherlands, represented by Marc Fierstra and
Johannes S. van den Oosterkamp, Legal Advisers, acting as Agents,
with an address for service in Luxembourg at the Embassy of the
Netherlands, 5 Rue C.M. Spoo,
intervener,
v
Commission of the European Communities, represented by Wouter
Wils and Ulrich Wölker, of its Legal Service, acting as
Agents, with an address for service in Luxembourg at the office
of Carlos Gómez de la Cruz, of its Legal Service, Wagner
Centre, Kirchberg,
defendant,
APPLICATION for the annulment of the Commission's decision of
29 March 1996 refusing the applicant access to letters sent by
the Directorate-General for Competition to national courts in
the context of the notice on cooperation between national courts
and the Commission in applying Articles 85 and 86 of the EEC
Treaty,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
(Fourth Chamber),
composed of: K. Lenaerts, President, P. Lindh and J.D. Cooke,
Judges,
Registrar: H. Jung,
having regard to the written procedure and further to the hearing
on 25 September 1997,
gives the following
Judgment
Legal background
1 In 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.'
2 In 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).
3 In 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.
4 Accordingly, 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.
5 The 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'.
6 For 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.'
7 After 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.'
8 The 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.'
9 In 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 EEC Treaty (OJ 1993 C 39, p. 6 hereinafter `the
Notice'). In the Notice, the Commission stated that:
`37. ... national courts may, within the limits of their national
procedural law, ask the Commission and in particular its Directorate-General
for Competition for the following information.
First, they may ask for 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. The Commission, for its part, will endeavour to give
priority to cases which are the subject of national proceedings
suspended in this way, in particular when the outcome of a civil
dispute depends on them.
38. Next, national courts may consult the Commission on points
of law. Where the application of Article 85(1) and Article 86
causes them particular difficulties, national courts may consult
the Commission on its customary practice in relation to the Community
law at issue. As far as Articles 85 and 86 are concerned, these
difficulties relate in particular to the conditions for applying
these Articles as regards the effect on trade between Member
States and as regards the extent to which the restriction of
competition resulting from the practices specified in these provisions
is appreciable. In its replies, the Commission does not consider
the merits of the case. In addition, where they have doubts as
to whether a contested agreement, decision or concerted practice
is eligible for an individual exemption, they may ask the Commission
to provide them with an interim opinion. If the Commission says
that the case in question is unlikely to qualify for an exemption,
national courts will be able to waive a stay of proceedings and
rule on the validity of the agreement, decision or concerted
practice.
39. The answers given by the Commission are not binding on the
courts which have requested them. In its replies the Commission
makes it clear that its view is not definitive and that the right
for the national court to refer to the Court of Justice, pursuant
to Article 177, is not affected. Nevertheless, the Commission
considers that it gives them useful guidance for resolving disputes.
40. Lastly, national courts can obtain information from the Commission
regarding factual data: statistics, market studies and economic
analyses. The Commission will endeavour to communicate these
data ... or will indicate the source from which they can be obtained'.
Facts
10 The XXIVth Report on Competition Policy (1994) (hereinafter
`the XXIVth Report') stated that the Commission had received
a number of questions from national courts pursuant to the procedure
described in paragraph 9 above.
11 By 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).
12 By 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.
...'
13 The 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.
14 By 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.
15 By 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.
...'
16 The 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.
Procedure and forms of order sought
17 In those circumstances, by application lodged at the Registry
of the Court of First Instance on 29 May 1996, the applicant
brought this action.
18 By documents lodged at the Registry of the Court of First
Instance on 4 and 19 November 1996 respectively, the Netherlands
Government and the Swedish Government sought leave to intervene
in this case in support of the applicant.
19 By order of the President of the Fourth Chamber of the Court
of First Instance of 9 December 1996, those two governments were
granted leave to intervene in support of the applicant. Pursuant
to its request dated 14 March 1997, the Swedish Government's
application for leave to intervene was removed from the register
by order of the President of the Fourth Chamber of 12 May 1997
and it was ordered to bear its own costs.
20 The written procedure ended on 24 April 1997.
21 The parties presented oral argument and replied to the Court's
questions at the hearing on 25 September 1997.
22 The applicant, supported by the Kingdom of the Netherlands,
claims that the Court should:
- annul the contested decision and
- order the Commission to pay the costs.
23 The Commission contends that the Court should:
- dismiss the application and
- order the applicant to pay the costs.
Law
24 The applicant raises two pleas in law in support of his action,
alleging infringement of Decision 94/90 and infringement of Article
190 of the Treaty, respectively.
The first plea, alleging infringement of Decision 94/90
Arguments of the parties
25 The applicant submits, first, that the exception relating
to `court proceedings' provided for in the Code of Conduct applies
only to proceedings to which the Commission is a party. The exception
cannot therefore be relied on in this case.
26 If the Court were to consider that the exception relating
to `court proceedings' also applies to proceedings to which the
Commission is not a party, the applicant submits, in the alternative,
that disclosure of the documents in issue does not undermine
the cooperation between the Commission and national courts or
adversely affect the public interest. There is no basis for the
Commission's assertion that disclosure of such documents would
not be appreciated by the national court and, in any event, the
feelings of the national court cannot take precedence over the
primary rule of public access.
27 The Commission is wrong to claim that in certain circumstances
it is required to refuse access to documents. In any event it
has a duty to state the extent to which its legitimate interests
and the interest in the proper conduct of legal proceedings require
application of the exception to the rule of public access (Case
C-54/90 Weddel v Commission [1992] ECR I-871).
28 The applicant considers that the information which might be
provided by the Commission in the context of cooperation with
national courts is not in any way confidential and points out
that in this case the Commission has confirmed that none of the
letters requested was of a confidential nature.
29 It would be contrary to the tradition of public access, of
review of acts of the administration and of the conventional
separation of powers if such communications from the administration
to the judiciary were not accessible.
30 The Netherlands Government considers that the Commission has
given a broad interpretation to the exceptions to the fundamental
principle that the public will receive the widest possible access
to documents held by the Commission. The effect of its interpretation
of Decision 94/90 is to exclude a category of documents from
public access with no consideration of whether the content of
the documents justifies recourse to the exceptions. Letters sent
by the Commission to a national court fall within the scope of
the Code of Conduct and the Commission is incorrect in its view
that it is for the national court alone to decide whether and
under what conditions such letters may be disclosed to third
parties.
31 The proper conduct of proceedings before the national court
would not be impeded if information provided by the Commission
to the court in the context of an action between individuals
came to the attention of third parties. National courts would
not be less disposed to request information from the Commission
if the reply might be disclosed, and even if that proved to be
the case it would not constitute sufficient grounds for holding
disclosure to be incompatible with the public interest. The Netherlands
Government acknowledges that disclosure of the documents could
jeopardise the sound administration of justice to the extent
that individuals who could have access to the information in
those documents could thus avoid judicial proceedings, which
would affect the efficient and uniform application of Community
law.
32 The relationship between the Commission and national courts
is governed by the principle of cooperation in good faith, pursuant
to Article 5 of the Treaty. The Commission does not act as an
expert in the context of the notice.
33 Finally, the Netherlands Government submits that the Commission
has not carried out an individual assessment of each specific
case.
34 In response to the applicant's first argument, the Commission
points out that it starts from the assumption that the contested
decision falls within the scope of Decision 94/90. It rejects
the interpretation that the exception relating to `court proceedings'
applies only to proceedings to which the Commission is a party.
The rule set out in the Code of Conduct is broad enough to include
Commission letters drafted in the context of cooperation with
national courts.
35 As regards the second argument concerning the protection of
the public interest, it is not necessary to assess the interests
at issue, since such an assessment is necessary only where the
Commission refuses access to a document in order to protect the
confidentiality of its proceedings (Case T-105/95 WWF UK v Commission
[1997] ECR II-313, paragraph 59). It is nevertheless apparent
from the two replies sent to the applicant that his request was
examined on its own merits. In this case it is sufficient that
there is a possibility that disclosure might undermine the protection
of the public interest, in particular in the case of court proceedings,
for the Commission to be obliged to refuse access to the document
at issue.
36 Disclosure of the replies given by the Commission in the context
of the Notice could indeed undermine the protection of the public
interest (court proceedings), and not only in the situation evoked
by the Netherlands Government. When a national court applies
Articles 85(1) and 86 of the Treaty, it does so on the basis
of its autonomous jurisdiction and in a manner determined in
principle by national procedural rules (Case C-60/92 Otto v Postbank
[1993] ECR I-5683, paragraph 14, and Case C-234/89 Delimitis
v Bräu [1991] ECR I-935, paragraph 53). It follows from
those principles that if a national court submits a request to
the Commission it is for that court alone to determine on the
basis of its national procedural law whether and, if so, when
and under what conditions the Commission's reply may be disclosed
to third parties. That remains the case at least for as long
as the litigation in question is pending.
37 The role of the Commission in the context of its cooperation
with national courts differs fundamentally from the role of the
Court of Justice in proceedings under Article 177 of the Treaty,
to which the applicant referred in his confirmatory application.
When it answers a question referred for a preliminary ruling
the Court of Justice states the law and its judgment is binding
on the national court. The Commission, by contrast, plays a secondary
role vis-à-vis the national court, which is entirely free
to decide whether or not to approach the Commission. The Commission's
role can be compared to that of an expert commissioned by a court
to provide information or an opinion. The Commission sends its
answer to the national court to deal with as it sees fit.
38 The Commission adds that its reason for refusing access to
the documents is quite separate from the question whether those
documents contain business secrets or other confidential data
which the Commission is not authorised to disclose in the context
of a procedure initiated pursuant to Regulation No 17/62 of the
Council of 6 February 1962, First Regulation implementing Articles
85 and 86 of the Treaty (OJ, English Special Edition 1959-1962,
p. 87). It points out, however, that it is required to observe
the rules of confidentiality as regards competition procedures
pending before it. Within those limits, it seeks to be as open
as possible.
39 The Commission also rejects the Netherlands Government's assertion
that the principle that the public should have the widest possible
access to documents held by the European institutions is a fundamental
principle of Community law.
40 As regards the transparency of relations between the executive
and the judiciary, it considers that the relationship between
the Commission and national courts cannot simply be equated with
the relationship between the executive and the judiciary in a
traditional State.
Findings of the Court
41 Decision 94/90 is a measure granting citizens a right of access
to documents held by the Commission (WWF UK v Commission, cited
above, paragraph 55). It follows from the broad scheme of that
decision that it applies generally to requests for access to
documents and that any person may request access to any Commission
document without needing to justify the request (see, in that
respect, Communication 93/C 156/05, cited at paragraph 2 above).
The exceptions to that right must be construed and applied strictly,
in order not to defeat the application of the general principle
laid down in the decision (WWF UK v Commission, cited above,
paragraph 56).
42 Decision 94/90 established two categories of exception. According
to the wording of the first category, drafted in mandatory terms,
`the institutions will refuse access to any document where disclosure
could undermine ... [in particular] the protection of the public
interest (... court proceedings)' (see paragraph 8 above). It
follows that the Commission is obliged to refuse access to documents
falling under that exception once the relevant circumstances
are shown to exist (WWF UK v Commission, cited above, paragraph
58).
43 It follows from the use of the form `could', in the present
conditional, that in order to show that disclosure of documents
relating to court proceedings could undermine the protection
of the public interest, as required by the case-law (see paragraph
42 above), before deciding on an application for access to such
documents, the Commission must consider in respect of each document
requested whether, in the light of the information available
to it, disclosure is in fact likely to undermine one of the facets
of public interest protected by the first category of exception.
Where that is the case, the Commission must refuse access to
the documents in issue (see paragraph 42 above).
44 It is thus necessary to consider whether, and if so, to what
extent the Commission is entitled to rely on the exception based
on the protection of the public interest in order to refuse to
grant access to documents sent by it to a national court in response
to a request from that court in the context of the cooperation
based on the Notice, even though the Commission is not a party
to the proceedings pending before the national court which gave
rise to the request.
45 In that respect, it should be recalled that Article 6 of the
European Convention on Human Rights (hereinafter the `ECHR')
assures the right of everyone to a fair trial. In order to guarantee
that right, the case must be heard, inter alia, `... by an independent
and impartial tribunal ...' (Article 6 of the ECHR).
46 It is settled case-law that fundamental rights form an integral
part of the general principles of law whose observance the Community
judicature ensures (see, in particular, Opinion 2/94 of the Court
of Justice [1996] ECR I-1759, paragraph 33 and Joined Cases T-213/95
and T-18/96 SCK and FNK v Commission [1997] ECR II-0000, paragraph
53). For that purpose, the Court of Justice and the Court of
First Instance draw inspiration from the constitutional traditions
common to the Member States and from the guidelines supplied
by international treaties for the protection of human rights
on which the Member States have agreed or to which they have
acceded. In that regard the ECHR has special significance (see,
in particular, the judgment in Case 222/84 Johnston v Chief Constable
of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18).
Furthermore, as provided for in Article F(2) of the Treaty on
European Union, which entered into force on 1 November 1993,
`the Union shall respect fundamental rights as guaranteed by
the [ECHR], and as they result from the constitutional traditions
common to the Member States, as general principles of Community
law'.
47 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.
48 The 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).
49 Its 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.
50 In 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).
51 When, 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.
52 In 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.
53 In that respect, as the Commission has already pointed out,
it is irrelevant whether the three documents in issue contained
business secrets, since the Commission's refusal to disclose
those replies was justified on the grounds set out above (see
paragraphs 45 to 52 above).
54 The role played by the Commission in the context of the cooperation
put in place by the Notice also differs from the role of the
Court of Justice in proceedings under Article 177 of the Treaty.
The latter establishes a special procedure between two court
systems. The role of the Court of Justice in that procedure is
to rule on the questions raised by national courts. The national
court formulates the questions to be referred to the Court of
Justice according to its own rules of procedure which will, where
necessary, ensure the confidentiality of sensitive information.
Similarly, the instructions to the Registrar of the Court of
Justice provide that, where appropriate, names or confidential
data may be omitted in publications concerning the case. In contrast,
the cooperation referred to in the Notice is not governed by
any such rules of procedure. There is therefore no reason to
apply the rules concerning the publication of judgments delivered
in the context of proceedings under Article 177 to replies given
by the Commission in the context of the Notice.
55 Finally, the applicant has not shown how the principle of
the separation of powers and `review of acts of the administration'
would not be respected if the replies provided by the Commission
to national courts in the context of the Notice were not made
accessible to the public merely on request to the Commission.
That argument must therefore be dismissed as unfounded.
56 For the reasons set out above, the first plea cannot be upheld.
The second plea, alleging infringement of Article 190 of the
EC Treaty
Arguments of the parties
57 The applicant submits that the statement of reasons given
by the Commission is insufficient.
58 The Netherlands Government submits that a statement of reasons
must be commensurate to the nature of the measure involved. It
considers that the statement of reasons is incomprehensible because
different reasons were put forward by the Commission in the two
letters. In the first the Commission referred to `court proceedings',
whilst in the second it mentioned the `proper administration
of justice'. The recipient does not therefore have a clear view
of the reasons which led the institution to decide in the way
it finally did.
59 In the pleadings, the Commission again gives an essentially
different justification for the contested decision, by referring
to the nature of the cooperation between the Commission and national
courts, in the context of which the Commission must be compared
to an expert commissioned by the court to provide information.
Quite apart from the fact that the comparison is erroneous, that
argument completely obscures the grounds on which the Commission
actually based its decision to refuse access to the requested
documents.
60 The Netherlands Government also considers that the two letters
fail to show why or in what way the supposed relationship of
trust between the Commission and national courts could be jeopardised
if the applicant were to be granted access to the documents.
The Commission provided no justification for its view that the
national court would not appreciate disclosure of the documents
in issue. Furthermore, it is not at all clear from the statement
of reasons how the possible need to protect that relationship
of trust could have other consequences if the case at issue were
no longer pending.
61 The Commission considers that the contested decision is based
on sufficient grounds, which are set out not only in the contested
decision itself but also in the letter dated 23 February 1996
from the Director-General of DG IV. Those two letters clearly
indicate the reasons for which the application for access was
refused. Furthermore, the Secretary-General of the Commission
also replied to some of the arguments put forward by the applicant
in his confirmatory application dated 29 February 1996.
62 In its observations on the Netherlands Government's statement
in intervention, the Commission stresses that the grounds for
the contested decision are to be found not only in the letter
dated 29 March 1996 but also in the letter dated 23 February
1996. There is no contradiction or material difference between
the use of the expression `court proceedings' in one letter and
`proper administration of justice' in the other. The relationship
of trust referred to by the Commission is clearly the relationship
resulting from the obligation of cooperation in good faith laid
down in Article 5 of the Treaty.
Findings of the Court
63 It should first be noted that the duty to give reasons for
a decision has a twofold purpose, namely, on the one hand, to
permit interested parties to know the justification for the measure
so as to enable them to protect their rights and, on the other,
to enable the Community judicature to exercise its power to review
the legality of the decision (see, in particular, Case C-350/88
Delacre and Others v Commission [1990] ECR I-395, paragraph 15,
and WWF UK v Commission, cited above, paragraph 66). The question
as to whether a statement of reasons satisfies those requirements
must be assessed with reference not only to its wording but also
to its context and the whole body of legal rules governing the
matter in question (Case C-122/94 Commission v Council [1996]
ECR I-881, paragraph 29).
64 The Code of Conduct provides that, where the initial application
for access is rejected, the applicant is entitled to ask the
institution to reconsider that rejection without being obliged
to put forward arguments challenging the validity of the first
decision. That procedure does not constitute an appeal against
the refusal but an opportunity to obtain a second assessment
by the institution of the application for access.
65 It follows that when a reply confirms the rejection of an
application on the same grounds, it is appropriate to consider
the sufficiency of the reasons given in the light of all the
exchanges between the institution and the applicant, taking into
account also the information available to the applicant concerning
the nature and content of the requested documents.
66 In this case, it is clear from the applicant's letter dated
23 January 1996 and the paragraphs of the XXIVth Report referred
to therein that the applicant knew from the outset that the Commission's
letters constituted replies sent in the context of the Notice
to three national courts and that each concerned a case pending
before those courts. The subject-matter of those letters was
also described in general terms.
67 In his response dated 23 February 1996 the Director-General
of DG IV relied on the exception based on the protection of the
public interest (court proceedings) and explained that the requested
letters contained points of both law and fact which should be
regarded as forming part of the national courts' files, particularly
since the cases at issue were still pending.
68 The contested decision constitutes an express confirmation
of that first refusal. Even though it refers to `the protection
of the public interest and, specifically, the proper administration
of justice', the applicant could have been in no doubt that the
Secretary-General's intention was to reject the application on
the basis of the same exception to the Code. There is no conflict
between the use of the expression `court proceedings' in the
first letter and `proper administration of justice' in the second,
since the exception at issue is intended to ensure respect for
the proper administration of justice. It follows that the Commission
gave essentially the same explanation in both letters.
69 Nor, contrary to what is claimed by the Netherlands Government,
does the fact that the Commission referred to cooperation with
national courts during the hearing constitute a new ground, as
that cooperation was already mentioned in the first letter, which
speaks of a `relationship of trust' between the Commission and
the national court authorities in the Member States, and was
recalled in the second letter, which refers to `the necessary
cooperation between the Commission and national courts' and to
the risk that disclosure of the replies requested could undermine
that cooperation.
70 Nor can the Commission be criticised for having referred to
proceedings under Article 177 only in the second letter, as its
comments constitute a response to the comparison which the applicant
sought to draw in the confirmatory application between those
proceedings and the procedure referred to in the Notice.
71 It follows from the foregoing that the Commission clearly
indicated the grounds on which it had applied the exception based
on the need to protect the public interest (court proceedings)
in respect of the three replies requested, whilst taking account
of the nature of the information contained therein. The applicant
was thus in a position to know the reasons on which the contested
decision was based and the Court was able to exercise its power
to review the legality of that decision.
72 It follows that the second plea cannot be accepted and the
action must therefore be dismissed in its entirety.
Costs
73 Under Article 87(2) of the Rules of Procedure, the unsuccessful
party is to be ordered to pay the costs, if they have been asked
for in the successful party's pleadings. Since the applicant
has been unsuccessful and the Commission has asked for costs,
he must be ordered to pay the costs. However, under Article 87(4)
of the Rules of Procedure, the intervener must bear its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE
(Fourth Chamber)
hereby:
1. Dismisses the application;
2. Orders the applicant to pay the costs incurred by the defendant;
3. Orders the Kingdom of the Netherlands to bear its own costs. |
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