|
1 Actions for annulment - Actionable measures - Measures
producing binding legal effects - Commission letter confirming
a decision refusing to disclose the minutes of a comitology committee
- Not an actionable measure
(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC)
2 Acts of the institutions - Statement of reasons - Obligation
- Scope - Commission decision refusing to disclose the minutes
of a comitology committee
(EC Treaty, Art. 190 (now Art. 253 EC); Commission Decision 94/90)
3 Commission - Right of public access to Commission documents
- Decision 94/90 - Limits of the principle of access to documents
- Rule on authorship - To be narrowly construed - Minutes of
comitology committees - Refusal of access founding on the rule
on authorship - Unlawful
(Council Decision 87/373; Commission Decision 94/90)
1 The acts or decisions in respect of which an action for annulment
may be brought are those measures which produce binding legal
effects such as to affect the interests of the applicant by bringing
about a distinct change in its legal position. That is not the
position in the case of a Commission letter which merely confirms
a decision refusing to forward the minutes of a comitology committee,
since in such circumstances the the only act open to challenge
for the purposes of Article 173 of the EC Treaty (now, after
amendment, Article 230 EC) would be the decision itself.
2 The obligation to state reasons - laid down in Article 190
of the Treaty (now Article 253 EC) - means that the reasoning
of the Community authority which adopted the contested measure
must be shown clearly and unequivocally so as to enable the persons
concerned to ascertain the reasons for the measure in order to
protect their rights and the Community judicature to exercise
its power of review.
In that connection, a Commission decision refusing to forward
the minutes of a comitology committee is sufficiently reasoned
where it refers to the rule on authorship laid down in the code
of conduct adopted by Decision 94/90 on public access to Commission
documents and confirms that, by virtue of that rule, the request
was inadmissible on the ground that the author of the documents
sought was a third party.
3 Decision 94/90 on public access to Commission documents provides
that, where a document held by an institution has been written
by a natural or legal person, a Member State, another Community
institution or body or any other national or international body,
the application for access must be sent direct to the author.
Since that `rule on authorship' constitutes an exception to a
general principle, it must be construed strictly, so as not to
frustrate the application of the general principle of transparency
laid down by Decision 94/90.
For the purposes of the Community legislation on access to documents,
comitology committees - set up pursuant to Decision 87/373 laying
down the procedures for the exercise of implementing powers conferred
on the Commission - come under the Commission itself, which is
responsible for ruling on applications for access to documents
of those committees, such as the minutes of the Customs Code
Committee. Comitology committees, which are presided over by
a Commission representative, assist the Commission in performing
the tasks conferred on it. Moreover, they do not have their own
administration, budget, archives or premises, still less an address
of their own. Consequently, a committee such as the Customs Code
Committee, which does not belong to any of the categories of
third-party authors, cannot be regarded as being `another Community
institution or body' within the meaning of Decision 94/90. Furthermore,
refusal of access to the minutes of the various `comitology'
committees would amount to placing a considerable restriction
on the right of access to documents, incompatible with the very
objective of the right of access to documents.
Consequently, a Commission decision refusing access to the minutes
of the Customs Code Committee by invoking the rule on authorship
is contrary to Decision 94/90 and must be annulled.
In Case T-188/97,
Rothmans International BV (formerly Rothmans Group Holdings BV),
a company incorporated under Netherlands law, having its registered
office in Amsterdam, represented by Scott Crosby, Solicitor,
with an address for service in Luxembourg at the Chambers of
Victor Elvinger, 31 Rue d'Eich,
applicant,
supported by
Kingdom of Sweden, represented initially by Erik Brattgård
and subsequently by Anders Kruse, Adviser to the Ministry of
Foreign Affairs, acting as Agents, with an address for service
in Luxembourg at the Swedish Embassy, 2 Rue Heinrich Heine,
intervener,
v
Commission of the European Communities, represented initially
by Ulrich Wölker and Carmel O'Reilly and subsequently by
Ulrich Wölker and Xavier Lewis, of its Legal Service, acting
as Agents, with an address for service in Luxembourg at the office
of Carlos Gómez de la Cruz, also of its Legal Service,
Wagner Centre, Kirchberg,
defendant,
APPLICATION for the annulment of a Commission decision refusing
the applicant access to the minutes of the Customs Code Committee,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
(First Chamber, Extended Composition),
composed of: B. Vesterdorf, President, C.W. Bellamy, J. Pirrung,
A.W.H. Meij and M. Vilaras, Judges,
Registrar: H. Jung,
having regard to the written procedure and further to the hearing
on 19 January 1999,
gives the following
Judgment
Legal framework
1 In the Final Act of the Treaty on European Union signed at
Maastricht on 7 February 1992 the Member States incorporated
a Declaration (Declaration No 17) on the right of access to information
(hereinafter `Declaration No 17') in the following 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 Following Declaration No 17, the Commission published Communication
93/C 156/05 concerning public access to the institutions' documents
(OJ 1993 C 156, p. 5), which it sent to the Council, the Parliament
and the Economic and Social Committee on 5 May 1993. On 2 June
1993 it submitted 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, the Council and the Commission
approved on 6 December 1993 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 the documents held by those
institutions.
4 The Commission, for its part, adopted this Code of Conduct
by way of Decision 94/90/ECSC, EC, Euratom of 8 February 1994
on public access to Commission documents (OJ 1994 L 46, p. 58,
hereinafter `Decision 94/90').
5 The Code of Conduct, as adopted by the Commission, sets out
the following general principle:
`The public will have the widest possible access to documents
held by the Commission and the Council'.
6 The Code of Conduct defines the term `document' as meaning
`any written text, whatever its medium, which contains existing
data and is held by the Commission or the Council'.
7 Under the third paragraph of the section headed `Processing
of initial applications', the Code of Conduct provides as follows
(hereinafter referred to as the `rule on authorship'):
`Where the document held by an institution was written by a natural
or legal person, a Member State, another Community institution
or body or any other national or international body, the application
must be sent direct to the author'.
8 The matters on which an institution may rely in order to justify
rejection of an application for access to documents are set out
as follows in a fourth section of the Code of Conduct entitled
`Exceptions':
`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.'
The facts of the dispute
9 The applicant is a company incorporated under Netherlands law
and belongs to the multinational Rothmans group. It is principally
involved in the manufacture, distribution and sale of tobacco
products, in particular cigarettes.
10 By letter of 23 January 1997 the applicant requested from
the Commission access to a number of documents which included
the minutes of the Customs Code Committee - Transit Section (hereinafter
`the Committee') from 4 April 1995 onwards.
11 By letter of 21 February 1997, the Director-General of the
Directorate-General for Customs and Indirect Taxation (DG XXI)
wrote to the applicant informing it that its application would
be dealt with as quickly as possible but pointing out that, in
view of the number and nature of the documents requested, it
would probably be more than a month before the applicant would
receive a reply.
12 By letter of 26 February 1997, the applicant requested the
Director-General to confirm that the application for access had
been granted within the meaning of Article 2(2) of Decision 94/90
and that the one-month period referred to was necessary only
to enable the documents to be compiled.
13 Since no reply was forthcoming, the applicant, by letter of
14 March 1997, applied to the Secretary-General of the Commission
for review of the intention to refuse access, as provided for
in Article 2(2) of Decision 94/90.
14 The Secretariat-General replied on 24 April 1997 that the
application would be dealt with as rapidly as possible but that
it would probably be more than a month before the applicant would
receive a reply.
15 By letter of 25 April 1997, the applicant stated that the
failure by the Secretary-General to reply within one month following
lodgement of the application for review constituted a decision
rejecting its application.
16 In a letter of 30 April 1997 the Secretary-General forwarded
a number of Commission documents but refused to hand over the
minutes of the Committee on the ground that the Commission was
not their author. The Secretary-General also referred to the
Committee's internal regulation, which stated that its work was
confidential.
17 On 6 May 1997 the applicant requested the Secretary-General
to confirm that the documents forwarded constituted all the documents
deemed accessible, to indicate who was the author of the Committee's
minutes, and to forward to it the Committee's internal regulation.
18 The Secretariat-General confirmed, by letter of 15 May 1997,
that it had sent to the applicant all documents which DG XXI
had in its possession, with the exception of the Committee's
minutes. It pointed out that, while the minutes are drawn up
by the Commission in its secretarial capacity, they are adopted
by the Committee, which is therefore their author. The Secretariat-General
refused to hand over the Committee's internal regulation on the
ground that the Commission was not the author of that document.
Finally, it reiterated that, under that regulation, the Committee's
proceedings are confidential.
19 By letters of 30 May 1997, the applicant requested access
to the minutes in question from the customs authorities of each
Member State. At the date on which the present action was brought,
seven replies had been received, two merely acknowledging receipt
of the application and the other five declining access by reference,
in the majority of cases, to the confidential nature of the work
carried out by the Committee.
Procedure
20 The applicant brought the present action by application lodged
at the Registry of the Court of First Instance on 24 June 1997.
21 By document lodged at the Court Registry on 25 November 1997,
the Kingdom of Sweden applied for leave to intervene in support
of the form of order sought by the applicant. By order of 12
December 1997 the President of the First Chamber of the Court
of First Instance granted it leave to intervene.
22 By decision of 11 November 1998, the Court decided to assign
the case to the First Chamber, Extended Composition.
23 Following the report of the Judge-Rapporteur, the Court (First
Chamber, Extended Composition) decided to open the oral procedure
without any preparatory inquiry. However, by way of measures
of procedural organisation, the Court requested the defendant
and the Council to reply in writing to a number of questions
prior to the hearing. The defendant and the Council did so within
the time allowed for the purpose.
24 By letter of 13 November 1998 in reply to the Court's written
questions, the Commission thus confirmed to the Court that it
had sent to the applicant on 20 November 1997 certain documents
which it had, by an oversight, failed to forward to it. It stated
that it was not holding any other pertinent documents.
25 The hearing took place on 19 January 1999. The parties presented
oral argument and replied to the questions put by the Court.
Forms of order sought by the parties
26 The applicant claims that the Court should:
- annul the Commission decision of 15 May 1997, or in the alternative
the Commission decision of 30 April 1997, refusing the applicant
access to certain documents;
- order the Commission to pay the costs.
27 The Commission contends that the Court should:
- dismiss the application;
- order the applicant to pay the costs.
28 The Kingdom of Sweden, as intervener, claims that the Court
should annul the Commission decision of 15 May 1997.
The subject-matter of the dispute
29 Following the Commission's reply of 13 November 1998, the
applicant confirmed, at the Court's request during the hearing,
that the subject-matter of the dispute related exclusively to
the minutes of the Committee.
30 In view of the fact that the applicant is seeking, primarily,
the annulment of the decision of 15 May 1997 and, in the alternative,
the annulment of the decision of 30 April 1997, it is necessary
to determine which is the measure producing binding legal effects
such as to affect the interests of the applicant by bringing
about a distinct change in its legal position (see, for instance,
Case T-154/94 CSF and CSME v Commission [1996] ECR II-1377, paragraph
37).
31 In that connection, it is clear from its content that the
letter of 15 May 1997 is merely a confirmation of the decision
of 30 April 1997 refusing to forward the minutes of the Committee.
The letter also refers to the refusal to forward the internal
regulation of the Committee, but that regulation does not feature
among the documents in question. Finally, it also contains some
additional explanations and information.
32 In light of the foregoing, the only act open to challenge
for the purposes of Article 173 of the EC Treaty (now, after
amendment, Article 230 EC) is the decision of 30 April 1997 (hereinafter
`the contested decision').
33 Next, the Court notes that neither the application nor the
reply makes it possible to determine whether the applicant is
raising a plea concerning the legality of the rule on authorship
(see paragraph 7 above). It was established in this regard during
the oral procedure that the applicant is not raising such a plea.
Substance
34 The applicant puts forward two pleas in law in support of
its action. The first plea in law alleges infringement of Article
190 of the EC Treaty (now Article 253 EC) and the second infringement
of Decision 94/90.
The first plea in law: infringement of Article 190 of the Treaty
35 The applicant submits that the contested decision is vitiated
by defective reasoning such as to lead to its annulment.
36 The Court points out that, according to consistent case-law,
the obligation to state reasons means that the reasoning of the
Community authority which adopted the contested measure must
be shown clearly and unequivocally so as to enable the persons
concerned to ascertain the reasons for the measure in order to
protect their rights and the Community judicature to exercise
its power of review (see Case T-124/96 Interporc v Commission
[1998] ECR II-231, paragraph 53).
37 In the present case, the Commission provided reasons for the
contested decision by referring to the rule on authorship and
by confirming that, by virtue of that rule, the applicant's request
was inadmissible on the ground that the author of the documents
sought was a third party. Such reasoning is sufficiently clear
to enable the party concerned to understand why the Commission
did not forward to it the documents at issue.
38 It follows that the first plea in law must be rejected.
The second plea in law: infringement of Decision 94/90
Arguments of the parties
39 The applicant submits, primarily, that the Commission infringed
the provisions of Decision 94/90 through its refusal, in reliance
on the rule on authorship, to grant access to the minutes of
the Committee.
40 It notes in this regard that the Commission draws up the minutes
of the Committee. By virtue of this work, the Commission is,
materially and intellectually, the author of those documents.
The fact that the Committee approves those documents does not
suffice to confer on it the status of author.
41 The applicant further submits that the rule on authorship
is designed to protect third-party documents. It points out that
the Chairman of the Committee is a Commission official. Similarly,
it is a Commission representative who convenes the Committee,
draws up its agenda, distributes documents to members and performs
secretarial duties. Finally, all correspondence intended for
the Committee must be addressed to the Commission and marked
for the attention of the Committee Chairman.
42 The Commission denies that it refused the access to the Committee
minutes requested by the applicant. It states that, in its letter
of 30 April 1997, it confined itself to informing the applicant
that the minutes of the Committee were not `Commission documents'.
43 It argues in this regard that the reference to the rule on
authorship has the effect of drawing a distinction between the
person in possession of a document and the author of that document.
It contends that Decision 94/90 is applicable only to those documents
of which it is the author. That is a condition sine qua non for
the admissibility of any request for access. In this case, the
Commission merely pointed out that the request for access to
the Committee minutes was inadmissible.
44 The Commission denies that it is the author of the minutes.
It acknowledges that it provides the secretarial services for
the Committee and, in that capacity, records the content of the
meetings in the minutes. However, the mere fact that it undertakes
this technical work is not in itself sufficient to confer authorship
on it, since that is determined by `intellectual possession'
of the text. The Committee approves the minutes and, as the applicant
itself acknowledges, is solely responsible for its deliberations.
The Commission cannot, therefore, be the author of those documents
in the intellectual sense.
45 The Commission further rejects the applicant's argument that
the Committee is merely an `emanation' of the Commission. That
argument, it submits, misconstrues the role, functions and place
of `comitology' committees within the Community's institutional
framework.
46 According to the provisions of Council Decision 87/373/EEC
of 13 July 1987 laying down the procedures for the exercise of
implementing powers conferred on the Commission (OJ 1987 L 197,
p. 33, hereinafter `the "comitology" decision'), the
committees established pursuant to that decision assist the Commission
in the adoption of implementing measures under powers conferred
by the Council. The Commission infers from the use of the verb
`assist' that these committees cannot be considered to constitute
an integral part of the Commission.
47 The Customs Code Committee is composed of representatives
of the Member States and was brought into being, not by the Commission,
but by Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code (OJ 1992 L 302, p. 1).
Consultation of this Committee is an essential procedural requirement,
breach of which constitutes a procedural irregularity rendering
the measures so adopted liable to annulment.
48 The Swedish Government points out that Decision 94/90 is a
measure capable of conferring rights on third parties which the
Commission is obliged to respect (Case T-105/95 WWF UK v Commission
[1997] ECR II-313, paragraph 55).
49 The Swedish Government states that `comitology' committees
assist the Commission in the exercise of the powers which the
Council has delegated to the Commission. From the organisational
and administrative point of view, those committees must therefore
be regarded as an integral part of the Commission.
50 The Swedish Government further points out that if `comitology'
committees were to be regarded as separate bodies, this would
mean that the documents of such committees would fall outside
the scope of the rules adopted in relation to public access to
Council and Commission documents. An individual wishing to obtain
access to the work of the committees would then be dependent
on the committees' exercise of their own discretion, without
any possibility of judicial review. Such an interpretation would
frustrate the principle of transparency and for that reason can
scarcely have been the intention of the signatories of Declaration
No 17 or of the authors of the declarations of the European Council
in Birmingham and Edinburgh in 1992 (EC Bulletin 10-1992, p.
9, and EC Bulletin 12-1992, p. 7) and in Copenhagen in 1993 (EC
Bulletin 6-1993, p. 16).
51 The Swedish Government considers that the minutes of the Committee
were drawn up by the Commission within the scope of its activities.
The Commission ought, for that reason, to have examined the substance
of the request submitted by the applicant and determined whether
the documents requested could be disclosed.
52 In an alternative submission, the applicant argues that, according
to the terms of the letters of 30 April 1997 and 15 May 1997,
the Commission infringed Decision 94/90 and the Code of Conduct
through its refusal to grant that access by invoking the provisions
of the Committee's internal regulation dealing with the confidentiality
of the Committee's proceedings, without examining the respective
interests of the parties involved.
Findings of the Court
53 It should be borne in mind at the outset, first, that Declaration
No 17 and the Code of Conduct lay down the general principle
that the public should have the greatest possible access to documents
held by the Commission and the Council and, second, that Decision
94/90 is a measure conferring on citizens the right of access
to documents held by the Commission (WWF UK v Commission, cited
above, paragraph 55).
54 Next, it is important to note that where a general principle
is established and exceptions to that principle are laid down,
those exceptions must be construed and applied strictly, so as
not to frustrate the application of the general principle (WWF
UK v Commission, cited above, paragraph 56, and Interporc v Commission,
cited above, paragraph 49).
55 In this connection, the rule on authorship, howsoever described,
lays down an exception to the general principle of transparency
in Decision 94/90. It follows that this rule must be construed
and applied strictly, so as not to frustrate the application
of the general principle of transparency.
56 It is in the light of these observations that the Court must
appraise the argument that `comitology' committees are entirely
distinct from and independent of the Commission and that the
documents in question are consequently not Commission documents.
57 `Comitology' committees have their origin in Article 145 of
the EC Treaty (now Article 202 EC), which provides that the Council
may confer on the Commission, in the acts which the Council adopts,
powers for the implementation of the rules which the Council
lays down. These committees established pursuant to the `comitology'
decision are composed of representatives of the Member States
and are presided over by a Commission representative.
58 According to the `comitology' decision, the committees established
under that decision, such as the Customs Code Committee, assist
the Commission in performing the tasks conferred on it. Furthermore,
under the terms of the Committee's internal regulation, the Commission
provides the secretarial services for the Committee, which means
that it draws up the minutes which the Committee adopts. In addition,
it appears that this Committee, in common with the other `comitology'
committees, does not have its own administration, budget, archives
or premises, still less an address of its own.
59 In light of the above findings, the Committee cannot be regarded
as being `another Community institution or body' within the meaning
of the Code of Conduct adopted by Decision 94/90. Since it is
also not a natural or legal person, a Member State or any other
national or international body, such a committee does not belong
to any of the categories of third-party authors listed in that
Code.
60 At the Court's request, the Council confirmed that `comitology'
committees are not working groups set up for the purpose of supporting
it in its activity, but are, on the contrary, established for
the purpose of assisting the Commission in the exercise of the
powers conferred on it. Moreover, the Council stated that it
was only exceptionally that it held copies of the documents produced
by those committees. The Council concluded that the minutes of
a `comitology' committee are not documents belonging to it and
that it therefore does not have the power to grant access to
those minutes. Finally, it pointed out that an application for
access to the minutes of a `comitology' committee should be made
to the Commission, since it is the Commission that provides the
chairman of and the secretarial services for such a committee.
61 Furthermore, refusal of access to the minutes of the numerous
`comitology' committees would amount to placing a considerable
restriction on the right of access to documents, the importance
of which was confirmed by the Court of Justice in its judgment
in Case C-58/94 Netherlands v Council [1996] ECR I-2169, and
by the Court of First Instance, most recently, in its judgment
in Case T-174/95 Svenska Journalistförbundet v Council [1998]
ECR II-2289. Such a restriction is not compatible with the very
objective of the right of access to documents.
62 In those circumstances, it must be held that, for the purposes
of the Community rules on access to documents, `comitology' committees
come under the Commission itself. It is therefore the Commission
which is responsible for ruling on applications for access to
documents of those committees, such as the minutes here in question.
63 The Commission was therefore not entitled, in this case, to
refuse access to the minutes of the Committee by invoking the
rule on authorship set out in the Code of Conduct adopted by
Decision 94/90. It follows that it infringed that decision in
adopting the contested decision.
64 It follows that the second plea in law must be upheld and
that the contested decision must be annulled without its being
necessary to examine the alternative submission put forward by
the applicant.
Costs
65 Under Article 87(2) of the Rules of Procedure of the Court
of First Instance, the unsuccessful party is to be ordered to
pay the costs if they have been applied for in the successful
party's pleadings. Since the Commission has been unsuccessful,
it must, in accordance with the form of order sought by the applicant,
be ordered to pay the costs.
66 Under Article 87(4) of those Rules of Procedure, Member States
and institutions which have intervened in the proceedings are
to bear their own costs. The Kingdom of Sweden, which has intervened
in support of the form of order sought by the applicant, must
for that reason bear its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE
(First Chamber, Extended Composition)
hereby:
1. Annuls the Commission decision of 30 April 1997 refusing the
applicant access to the minutes of the Customs Code Committee;
2. Orders the Commission to pay the costs of the applicant, in
addition to its own costs;
3. Orders the Kingdom of Sweden to bear its own costs. |
|