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Commission - Right of public access to Commission documents
- Decision 94/90 - Transparency - Exceptions to the principle
of access to documents - Protection of the public interest -
Court proceedings - A preparatory document relating to the investigation
stage of an infringement procedure with respect to a Member State
(EC Treaty, Art. 169 (now Art. 226 EC); Commission Decision 94/90)
$$Decision 94/90 on public access to Commission documents,
which embodies the relevant code of conduct, is a measure which
grants citizens a right of access to documents held by the Commission.
It is intended to give effect to the principle of the widest
possible access for citizens to information with a view to strengthening
the democratic character of the institutions and the trust of
the public in the administration. Decision 94/90 applies generally
to requests for access to documents and any person may ask for
access to any unpublished Commission document without being required
to give a reason for the request.
Although the right of access is subject to exceptions, which
fall into two categories, these must be narrowly construed so
as not to frustrate application of the general principle of giving
the public the widest possible access to documents held by the
Commission. The first category is framed in mandatory terms,
to the effect that `the institutions will refuse access to any
document where disclosure could undermine [inter alia] the protection
of the public interest (public security, international relations,
monetary stability, court proceedings, inspections and investigations)'.
The confidentiality which the Member States are entitled to expect
of the Commission warrants, under the heading of protection of
the public interest, a refusal of access to documents relating
to investigations which may lead to an infringement procedure.
The disclosure of documents relating to the investigation stage
of the procedure laid down in Article 169 of the Treaty (now
Article 226 EC), during the negotiations between the Commission
and the Member State concerned, could undermine the proper conduct
of the infringement procedure inasmuch as its purpose - to enable
the Member State to comply of its own accord with the requirements
of the Treaty or, if appropriate, to justify its position - could
be jeopardised. Accordingly, a preparatory document relating
to that stage of the procedure satisfies the conditions subject
to which the Commission may rely on the public interest exception.
In Case T-309/97,
The Bavarian Lager Company Ltd, a company incorporated under
English law, whose registered office is in Lancashire, United
Kingdom, represented by Stephen Hornsby, Solicitor, with an address
for service in Luxembourg at the Chambers of André Marc,
36-58 Rue Charles Martel,
applicant,
v
Commission of the European Communities, represented by Carmel
O'Reilly, Ulrich Wölker and, at the hearing, 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,
of its Legal Service, Wagner Centre, Kirchberg,
defendant,
supported by
United Kingdom of Great Britain and Northern Ireland, represented
by John Collins and, at the hearing, Jessica Simor, of the Treasury
Solicitor's Department, acting as Agents, with an address for
service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,
intervener,
APPLICATION for the annulment of a Commission decision of 18
September 1997 refusing the applicant access to a draft reasoned
opinion drawn up by the Commission under Article 169 of the EC
Treaty (now Article 226 EC),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
(Fourth Chamber),
composed of: R.M. Moura Ramos, President, V. Tiili and P. Mengozzi,
Judges,
Registrar: B. Pastor, Principal Administrator,
having regard to the written procedure and further to the hearing
on 25 February 1999,
gives the following
Judgment
1 In the Final Act of the Treaty on European Union signed
in Maastricht on 7 February 1992, the Member States incorporated
a Declaration (No 17) on the right of access to information,
worded as follows:
`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 On 2 June 1993 the Commission submitted Communication 93/C
166/04 on openness in the Community (OJ 1993 C 166, p. 4), in
which the principles governing access to documents are set out.
3 On 6 December 1993 the Council and the Commission approved
a joint code of conduct concerning public access to Council and
Commission documents (OJ 1993 L 340, p. 41; hereinafter `the
Code of Conduct') and each undertook to take steps to implement
the principles laid down by the Code of Conduct before 1 January
1994.
4 For the purpose of complying with that undertaking, the Commission
adopted on 8 February 1994, on the basis of Article 162 of the
EC Treaty (now Article 218 EC), Decision 94/90/ECSC, EC, Euratom
on public access to Commission documents (OJ 1994 L 46, p. 58).
Article 1 of Decision 94/90 adopts the Code of Conduct, the text
of which is annexed to the decision.
5 The Code of Conduct lays down the following general principle:
`The public will have the widest possible access to documents
held by the Commission and the Council. "Document"
means any written text, whatever its medium, which contains existing
data and is held by the Commission or the Council.'
6 After briefly setting out the rules governing the submission
and processing of applications for access to documents, the Code
of Conduct describes the procedure to be followed where it is
proposed to reject such a request:
`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 for 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, [Article 173
of the EC Treaty (now, after amendment, Article 230 EC) and Article
138e of the EC Treaty (now Article 195 EC)].'
7 The grounds which may be relied upon by an institution to reject
an application for access to documents are listed in the Code
of Conduct in the following 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.'
8 On 4 March 1994, Commission Communication 94/C 67/03 on improved
access to documents (OJ 1994 C 67, p. 5), which explains the
conditions for implementation of Decision 94/90, was published.
It is apparent from that communication that `anyone may ... ask
for access to any unpublished Commission document, including
preparatory documents and other explanatory material'. As to
the exceptions provided for in the Code of Conduct, the communication
states that `the Commission may take the view that access to
a document should be refused because its disclosure could undermine
public and private interests and the good functioning of the
institution ...'. It is also stated that `there is nothing automatic
about the exemptions, and each request for access to a document
will be considered on its own merits'.
Facts
9 The applicant company was formed on 28 May 1992 to import German
beer for sale in public houses in the United Kingdom, principally
in the north of England.
10 It was, however, unable to sell its product, because a large
number of public houses in the United Kingdom are bound by exclusive
purchasing agreements which require them to obtain their supplies
of beer from particular breweries.
11 Under United Kingdom regulations relating to the supply of
beer, namely the Supply of Beer (Tied Estate) Order 1989 (S.I.
1989 No 2390), United Kingdom breweries with an interest in more
than 2 000 public houses are required to allow the tenants of
those public houses to purchase a beer from another brewery.
Under Article 7(2)(a) of the Order, such beer must be cask-conditioned
beer with an alcoholic strength exceeding 1.2% by volume. This
provision is commonly known as the guest beer provision (hereinafter
`the GBP').
12 Article 7(3) of the Order defines `cask-conditioned beer'
as `beer which undergoes fermentation in the container from which
it is served for consumption'. Most beers produced outside the
United Kingdom undergo filtration before the end of the brewing
process and therefore do not continue to ferment once they have
been put in a keg. Consequently, they cannot be regarded as `cask-conditioned
beer' within the meaning of the GBP and are thus not covered
by that provision.
13 Since the applicant took the view that the GBP constituted
a measure having an equivalent effect to a quantitative restriction
on imports and was accordingly incompatible with Article 30 of
the EC Treaty (now, after amendment, Article 28 EC), it lodged
a complaint with the Commission by letter of 3 April 1993.
14 Following its investigation, the Commission decided on 12
April 1995 to initiate a procedure against the United Kingdom
under Article 169 of the EC Treaty (now Article 226 EC). On 28
September 1995 it notified the applicant of that investigation
and informed it that it had sent a letter of formal notice to
the United Kingdom on 15 September 1995. On 26 June 1996 the
Commission decided to issue a reasoned opinion to the United
Kingdom and, on 5 August 1996, it released a press statement
announcing that decision.
15 On 15 March 1997 the United Kingdom Department of Trade and
Industry announced a proposal to amend the GBP which would permit
bottle-conditioned beer to be sold as a guest beer in the same
way as cask-conditioned beer. The Commission twice suspended
- on 19 March 1997 and 26 June 1997 - its decision to issue a
reasoned opinion to the United Kingdom and in a letter of 21
April 1997 the Head of Unit 2 `Application of Articles 30 to
36 of the EC Treaty (notifications, complaints, infringements,
etc.) and removal of trade barriers' of Directorate B `Free movement
of goods and public procurement' of the Directorate-General for
the Internal Market and Financial Services (DG XV) informed the
applicant that, in view of the proposed amendment of the GBP,
the procedure under Article 169 of the Treaty had been suspended
and that the reasoned opinion had not been served on the United
Kingdom. He stated that that procedure would be brought to a
close as soon as the amended GBP entered into force. The new
version of the GBP became applicable on 22 August 1997. The reasoned
opinion was therefore never sent to the United Kingdom and the
Commission finally decided on 10 December 1997 to take no further
action in the infringement procedure.
16 By a fax sent on 21 March 1997 the applicant's lawyers asked
the Director-General of DG XV for a copy of the `reasoned opinion',
in accordance with the Code of Conduct. By letter of 16 May 1997,
Mr Mogg, the Director-General of DG XV, refused that request
on the ground that, `as an internal rule of the Commission, an
EC Commission's reasoned opinion is confidential except in the
case of a specific decision to release it to the public'.
17 By letter of 27 May 1997 the applicant's lawyers reiterated
their request, relying on the judgment of the Court of First
Instance in Case T-194/94 Carvel and Guardian Newspapers v Council
[1995] ECR II-2765 and on the principle of good administration.
By letter of 9 July 1997 Mr Mogg again refused the request, relying
this time on the Code of Conduct and the exception relating to
protection of the public interest. Specifically, he maintained
that disclosure of the document in question could:
- harm the proper administration of justice, in particular the
implementation of Community law;
- compromise the treatment of infringements of that law; and
- undermine the climate of mutual confidence required for a full
and frank discussion between the Commission and a Member State
with a view to ensuring compliance by that State with its Treaty
obligations.
18 The applicant did not accept the Commission's views set out
above and, by letter of 7 August 1997 from its lawyers, lodged
a confirmatory application with the Secretary-General of the
Commission, in accordance with the procedure laid down by the
Code of Conduct.
19 By letter of 18 September 1997 (hereinafter `the contested
decision'), the Secretary-General of the Commission confirmed
the refusal of the application sent to DG XV and the reasons
given therefor, in the following terms:
`Having examined your request, I have to confirm Mr Mogg's refusal
to give you access to this document where disclosure could undermine
the protection of the public interest, in particular Commission
inspections and investigation tasks. This exception is expressly
foreseen in the Code of Conduct concerning public access to Commission
and Council documents, adopted by the Commission on 8 February
1994.
As Mr Mogg already explained to you in his letter of 9 July 1997,
it is indeed essential for the Commission to be able to investigate
matters with which it is concerned as guardian of the Treaty,
whilst respecting the confidential nature of such proceedings.
In the matter of investigation of infringements, sincere cooperation
and a climate of mutual confidence between the Commission and
the Member State concerned are required, which allow for both
parties to engage in a process of negotiation and compromise
with the search for a settlement to a dispute at a preliminary
stage.
The Court of First Instance itself considered in Case T-105/95
(WWF v Commission) that "the confidentiality which the Member
States are entitled to expect of the Commission in such circumstances
warrants, under the heading of protection of the public interest,
a refusal of access to documents relating to investigations which
may lead to an infringement procedure, even where a period of
time has elapsed since the closure of the investigation"
(par. 63).
It must also be emphasised that investigation into a possible
infringement is still continuing, since the Commission decided
to defer sending a reasoned opinion to the British authorities.
I remind you that by way of contrast with the optional exception
of the protection of the Commission's interest in the confidentiality
of its proceedings, this mandatory exception of protection of
public interest does not require a balance of interests. As stated
by the Court in the abovementioned case in its paragraph 58,
"the Commission is obliged to refuse access to documents
falling under any one of the exceptions contained in this category
once the relevant circumstances are shown to exist".'
Procedure and forms of order sought
20 It was in those circumstances that, by application lodged
at the Registry of the Court of First Instance on 9 December
1997, the applicant brought this action.
21 By a document lodged at the Court Registry on 25 May 1998,
the United Kingdom of Great Britain and Northern Ireland applied
for leave to intervene in support of the form of order sought
by the defendant. By order of 7 July 1998 the President of the
Third Chamber of the Court of First Instance granted such leave.
22 Since the applicant did not lodge a reply and the intervener
waived its right to lodge a statement in intervention, the written
procedure came to an end on 9 September 1998.
23 The applicant claims that the Court should:
- annul the decision of the Commission contained in the letters
of 16 May 1997, 9 July 1997 and 18 September 1997 in so far as
it refuses access to the `reasoned opinion' of the Commission
formulated following an investigation into the application of
Article 7(3) of the Supply of Beer (Tied Estate) Order 1989 (S.I.
1989 No 2390);
- order the Commission to pay the costs.
24 The defendant contends that the Court should:
- declare the action inadmissible in so far as it refers to a
decision of 16 May 1997 and 9 July 1997;
- dismiss the action;
- order the applicant to pay the costs.
25 The Government of the United Kingdom of Great Britain and
Northern Ireland, the intervener, contends that the Court should
grant the forms of order sought by the Commission.
26 At the hearing the applicant withdrew its claim for annulment
of a Commission decision contained in the letters dated 16 May
1997 and 9 July 1997.
Substance
The sole plea, alleging breach of Decision 94/90
Arguments of the parties
27 The applicant bases its submissions on the judgment in Case
T-105/95 WWF UK v Commission [1997] ECR II-313 (`the WWF judgment'),
in which the Court of First Instance stated that Decision 94/90
constituted the Commission's response to the calls made by the
European Council to reflect at Community level the right of citizens,
recognised in the domestic legislation of most of the Member
States, to have access to documents held by public authorities.
The applicant also refers to paragraphs 34 to 37 of the judgment
of the Court of Justice in Case C-58/94 Netherlands v Council
[1996] ECR I-2169 and to the Opinion of Advocate General Tesauro
in that case (points 14, 15 and 16). According to the applicant,
the Code of Conduct and the WWF judgment, interpreted correctly,
must mean the following:
- access to documents is a right; a person applying for a document
is not required to invoke a legitimate interest in support of
his request;
- the aim of transparency is an end in itself; the Commission
can deny access to a document by relying on the mandatory public
interest exception only if it proves that that access may actually
`undermine' the public interest;
- the public interest is `undermined' only if it is established
that disclosure of the document requested could result in significant
harm to a third party or the general public, the public interest
exception not being designed to protect the Commission's interests;
- the Code of Conduct does not allow the Commission to refuse
disclosure of entire categories of documents or to create internal
rules under which certain categories of documents are confidential
per se. Each application must be considered in the light of the
applicable provisions of that code.
28 The applicant states that the Commission's analysis of the
concept of public interest in its letter of 9 July 1997 is misguided
on two counts. First, the overriding public interest is that
of proper administration. The Commission, in its role as guardian
of the Treaty, is required to carry out its functions effectively
and in the interests of the Community, and it must be seen to
be doing so by the peoples of Europe. In the case of the GBP,
there is at least the appearance that the Commission has failed
to ensure compliance by the United Kingdom with its obligations
under the EC Treaty. The public interest demands that the reasoned
opinion, which reflects the formal view of the Commission as
to whether the GBP in its original form was consistent with Community
law, be disclosed, a step which would ensure full transparency
of the decision-making process and generate confidence in the
working of the institution.
29 Second, the reference by the Commission to the confidentiality
which the United Kingdom must enjoy as a Member State subject
to possible infringement proceedings is irrelevant in the present
case. The Commission specifically stated in its letter of 16
May 1997 that the infringement procedure would be brought to
a close as soon as the proposed amendment to the GBP entered
into force, a change which occurred on 22 August 1997. The Court
of First Instance held at paragraph 63 of the WWF judgment that
Member States subject to investigations which could lead to the
opening of infringement procedures were entitled to expect that
the Commission would respect confidentiality. Accordingly, the
confidentiality argument can be relied on only in circumstances
where the infringement proceedings are still only in prospect
and not where they have already been brought to a close.
30 The Commission disputes the applicant's assertion that the
public interest exception is not made out in the present case.
Referring to the Community case-law, in particular to the WWF
judgment, the Commission acknowledges that, in order to be able
to refuse access to documents by invoking that exception, it
is obliged to establish, first, the existence of relevant circumstances
for the exception (Carvel and Guardian Newspapers, paragraph
64, and WWF, paragraph 58) and, second, the link between the
documents at issue and those circumstances (WWF, paragraph 64).
It points out that the Code of Conduct lists various aspects
of the public interest, namely public security, international
relations, monetary stability, court proceedings and inspections
and investigations. The disclosure of documents related to those
notions is presumed to undermine the public interest. Moreover,
the Court expressly stated in the WWF judgment that documents
relating to investigations which could lead to an infringement
procedure came under the protection of the public interest and
in particular under the notion of inspections and investigations
(paragraph 63).
31 As regards the document at issue, the Commission states that
an investigation into a possible infringement of Community law
was in progress when the applicant requested a copy of the reasoned
opinion, which is, by definition, a document `involving' an infringement
procedure, and thus falls within the public interest exception.
It therefore did not refuse to disclose entire categories of
documents, but refused access to the document at issue because
of its nature.
32 The abovementioned exception is applicable by reason of the
confidentiality which the Member States are entitled to expect
from the Commission when it investigates a possible infringement
of Community law; the WWF judgment recognised that confidentiality
as a legitimate expectation. The Commission takes the view that
the objective of the procedure under Article 169 of the Treaty
is to ensure that the Member States comply with Community law
by means, initially, of a process of negotiation centred around
sincere dialogue with the State concerned. The interest of the
Member States and that of the investigation itself require that
dialogue to take place without any publicity at all and those
States to be assured that compromises may be reached in confidence.
33 Furthermore, the Commission contests the applicant's interpretation
of the WWF judgment and of the Code of Conduct. It maintains
that there is nothing in the grounds of that judgment to support
the conclusion that confidentiality may be invoked only where
infringement proceedings are merely in prospect. As regards the
Code of Conduct, that code provides for two categories of exceptions
to the general principle that citizens are to have access to
Commission documents. The Commission is obliged to refuse access
to documents falling within one of the mandatory exceptions,
which include the public interest exception, whereas it has a
degree of latitude in the case of the discretionary exceptions.
The exercise of that discretion entails the striking of a balance
between the interest of the citizen in obtaining access to the
documents and the interest which the Commission may have in maintaining
the confidentiality of its proceedings. Thus the Commission,
while conceding that the applicant does not have to prove an
interest in obtaining the documents requested, maintains that
it is wrong in stating that `the overriding public interest is
that of proper administration' or in invoking its specific commercial
interest inasmuch as no balancing of interests is required in
the present case. It is precisely by relying on the public interest
exception when the circumstances justifying it are established
that proper administration is safeguarded.
34 At the hearing, the Commission clarified its position by explaining
that the public interest to be protected in the present case
is the proper functioning of the Community. The objective of
the procedure under Article 169 of the Treaty can be achieved
only if all the Member States are assured that letters of formal
notice and reasoned opinions are disclosed solely to the Court
of Justice. In the absence of confidentiality, the opportunities
for constructive discussion and friendly settlement of disputes
would be restricted, giving rise to an increased number of proceedings
before the Court of Justice. The Commission points out that fewer
than 10% of the cases in which it initiates a procedure under
Article 169 of the Treaty are brought before the Court of Justice.
It maintains, finally, that the interest of all Community citizens,
which lies in the Community institutions functioning effectively
and there being a coherent legal system throughout the Union,
would not be safeguarded if a reasoned opinion were made public,
even in the case of an infringement procedure which had already
been brought to a close.
35 The Government of the United Kingdom of Great Britain and
Northern Ireland agrees with the Commission's position.
Findings of the Court
36 Decision 94/90 is a measure which grants citizens a right
of access to documents held by the Commission (WWF, paragraph
55, Case T-83/96 van der Wal v Commission [1998] ECR II-545,
paragraph 41, and Case T-124/96 Interporc v Commission [1998]
ECR II-231, paragraph 46). It is intended to give effect to the
principle of the widest possible access for citizens to information
with a view to strengthening the democratic character of the
institutions and the trust of the public in the administration
(see, with regard to the corresponding provisions of Council
Decision 93/731/EC of 20 December 1993 on public access to Council
documents (OJ 1993 L 340, p. 43), Case T-174/95 Svenska Journalistförbundet
v Council [1998] ECR II-2289, paragraph 66).
37 Furthermore, the Court has previously held that it is clear
from the scheme of Decision 94/90 that that decision applies
generally to requests for access to documents and that any person
may ask for access to any unpublished Commission document without
being required to give a reason for the request (Interporc, cited
above, paragraph 48, and see, with regard to the corresponding
provisions of Decision 93/731, Svenska Journalistförbundet,
paragraph 109).
38 However, two categories of exceptions to the general principle
that citizens are to have access to Commission documents are
set out in the Code of Conduct adopted by the Commission in Decision
94/90. The first category, which includes the exception relied
on by the Commission in the present case, is worded in mandatory
terms, providing that `the institutions will refuse access to
any document where disclosure could undermine [inter alia] the
protection of the public interest (public security, international
relations, monetary stability, court proceedings, inspections
and investigations)'.
39 It is to be remembered that the exceptions to access to documents
fall to be interpreted and applied restrictively so as not to
frustrate application of the general principle of giving the
public `the widest possible access to documents held by the Commission'
(WWF, paragraph 56, van der Wal, paragraph 41, and Interporc,
paragraph 49).
40 In the contested decision, the Commission states that disclosure
of the reasoned opinion `could undermine the protection of the
public interest, in particular Commission inspections and investigation
tasks'. It expressly mentions that `in the matter of investigation
of infringements, sincere cooperation and a climate of mutual
confidence between the Commission and the Member State concerned
are required, which allow for both parties to engage in a process
of negotiation and compromise with the search for a settlement
to a dispute at a preliminary stage'. In so doing, the Commission
refers principally to the WWF judgment.
41 However, contrary to the Commission's assertions, it does
not follow from the case-law, in particular the WWF judgment,
that all documents linked to infringement procedures are covered
by the exception relating to protection of the public interest.
According to that judgment, the confidentiality which the Member
States are entitled to expect of the Commission warrants, under
the heading of protection of the public interest, a refusal of
access to documents relating to investigations which may lead
to an infringement procedure, even where a period of time has
elapsed since the closure of the investigation (WWF, paragraph
63).
42 In that regard, it is wrong in fact and in law to classify
the document to which the applicant seeks access as a `reasoned
opinion'. The Commission has stated, in reply to a written question
put by the Court, that the members of the Commission did not
have before them a draft of the reasoned opinion when, on 26
June 1996, they adopted the decision to deliver that reasoned
opinion. The draft was in fact drawn up by the administration,
under the Commissioner responsible for the area in question,
after the Commission had adopted the decision to deliver a reasoned
opinion. Thus, it was the Commission staff who drew up the document
to be sent to the United Kingdom as a reasoned opinion. Subsequently,
on 19 March 1997, the Commission suspended its decision to send
a reasoned opinion to the United Kingdom and that document was,
in the end, never signed by the Commissioner responsible or communicated
to that Member State. The procedure initiated under Article 169
of the Treaty thus never reached the stage where the Commission
`deliver[s] a reasoned opinion'; the opinion therefore remained
a purely preparatory document.
43 Although the Commission has not disputed the classification
of the document at issue in the present case as a `reasoned opinion',
it appears necessary to correct that misclassification. The action
cannot be determined on the basis of a misrepresentation of the
document at issue. A misrepresentation of that kind would amount
to an error of law and consequently vitiate the Court's judgment
(see the judgments in Case C-53/92 P Hilti v Commission [1994]
ECR I-667, paragraph 42, and in Case C-362/95 P Blackspur DIY
and Others v Council and Commission [1997] ECR I-4775, paragraph
29, and the orders in Case C-55/97 P AIUFFASS and AKT v Commission
[1997] ECR I-5383, paragraph 25, and in Case C-140/96 P Dimitriadis
v Court of Auditors [1997] ECR I-5635, paragraph 35).
44 It follows that the question of access must be considered
having regard to the preparatory nature of the document at issue.
It will be remembered that according to Communication 94/C 67/03
of 4 March 1994, `anyone may ... ask for access to any unpublished
Commission document, including preparatory documents and other
explanatory material'.
45 Taking account of those matters, it is therefore necessary
to consider whether the Commission is entitled to rely on the
exception relating to protection of the public interest and,
if so, to what extent, in order to refuse to grant access to
the document requested by the applicant.
46 In the present case, having regard to the preparatory nature
of the document at issue and to the fact that, when access to
it was requested, the Commission had suspended its decision to
deliver the reasoned opinion, it is clear that the procedure
under Article 169 of the Treaty was still at the stage of inspection
and investigation. As the Court stated in the WWF judgment, the
Member States are entitled to expect confidentiality from the
Commission during investigations which may lead to an infringement
procedure (paragraph 63). The disclosure of documents relating
to the investigation stage, during the negotiations between the
Commission and the Member State concerned, could undermine the
proper conduct of the infringement procedure inasmuch as its
purpose, which is to enable the Member State to comply of its
own accord with the requirements of the Treaty or, if appropriate,
to justify its position (see Case C-191/95 Commission v Germany
[1998] ECR I-5449, paragraph 44), could be jeopardised. The safeguarding
of that objective warrants, under the heading of protection of
the public interest, the refusal of access to a preparatory document
relating to the investigation stage of the procedure under Article
169 of the Treaty.
47 It follows from all of the foregoing that the sole plea cannot
be upheld and, therefore, that the application must be dismissed.
Costs
48 Under Article 87(2) of the Rules of Procedure, the unsuccessful
party is to be ordered to pay the costs if they have been applied
for in the successful party's pleadings. As the applicant has
been unsuccessful, it will be ordered to pay the costs incurred
by the defendant, in accordance with the latter's application.
49 Under Article 87(4) of the Rules of Procedure, the intervener
is to bear its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE
(Fourth Chamber)
hereby:
1. Dismisses the application;
2. Orders the applicant to bear, in addition to its own costs,
those of the defendant;
3. Orders the United Kingdom of Great Britain and Northern Ireland
to bear its own costs. |
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