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1 Commission - Right of public access to Commission documents
- Decision 94/90 - Exceptions to the principle of access to documents
- Protection of the public interest - Judicial proceedings -
Scope
(Commission Decision 94/90)
2 Commission - Right of public access to Commission documents
- Decision 94/90 - Exceptions to the principle of access to documents
- Rule on authorship - Scope - To be narrowly construed - Refusal
of access to documents from the Member States or a non-member
country
(Final Act of the Treaty on European Union, Annex 17; Commission
Decision 94/90)
3 Acts of the institutions - Statement of reasons - Obligation
- Scope - Commission decision refusing access to documents from
the Member States or a non-member country
(EC Treaty, Art. 190 (now Art. 253 EC); Commission Decision 94/90)
1 Although, in accordance with the Code of Conduct adopted
by Decision 94/90 on public access to Commission documents, the
right of access to documents is subject to two categories of
exception, those exceptions must be interpreted strictly, in
order not to frustrate the application of the general principle
of giving the public the widest possible access to documents
held by the Commission.
In respect of the exception based on protection of the public
interest, the expression `court proceedings' must be interpreted
as meaning that the protection of the public interest precludes
disclosure of the content of documents drawn up by the Commission
solely for the purposes of specific court proceedings. That encompasses
not only the pleadings or other documents lodged, internal documents
concerning the investigation of the case before the court, but
also correspondence concerning the case between the Directorate-General
concerned and the Legal Service or a lawyers' office.
However, the exception based on the protection of public interest
(court proceedings) contained in the Code of Conduct cannot enable
the Commission to escape from its obligation to disclose documents
which have been drawn up in connection with a purely administrative
matter, even if the disclosure of such documents in proceedings
before the Community judicature may be prejudicial to the Commission.
The fact that court proceedings for annulment have been initiated
against the decision taken following the administrative procedure
is immaterial in that regard.
Decision 94/90 applies generally to requests for access to documents
emanating from the public. Whilst an undertaking may have been
able, in its capacity as applicant in proceedings before the
Court of First Instance, to rely on the provisions of the Rules
of Procedure relating to measures of organisation of the procedure
or the rights of the defence in order to obtain some of the documents
requested in its initial application to the Commission, it none
the less retains the option of requesting access to the same
documents pursuant to Decision 94/90.
2 Decision 94/90 on public access to Commission documents provides
that where a 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. So long as there is no rule
of law of a higher order according to which the Commission was
not empowered, in Decision 94/90, to exclude from the scope of
the Code of Conduct adopted by that Decision documents of which
it was not the author, the authorship rule may be applied. The
fact that Decision 94/90 makes reference to declarations of general
policy, such as the Declaration on the right of access to information
in Annex 17 to the Final Act of the Treaty on European Union
and the conclusions of several European Councils, does not alter
that finding, since such declarations do not have the force of
a rule of law of a higher order.
In so far as the authorship rule lays down an exception to a
general principle, it must be construed and applied strictly,
so as not to frustrate the application of the general principle
of transparency expressed in Decision 94/90.
In taking the view that it was not required to grant access to
certain documents from Member States or the authorities of a
non-member country, the Commission has applied the authorship
rule correctly and cannot, therefore, have committed an abuse
of rights.
3 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.
A Commission decision refusing access to certain documents from
the Member States or the authorities of a non-member country
gives sufficient reasons if it refers to the authorship rule
set out in the Code of Conduct adopted by Decision 94/90 on public
access to Commission documents and informs the applicant that
it should request a copy of the documents in question from the
Member States and the authorities of the non-member country concerned.
In Case T-92/98,
Interporc Im- und Export GmbH, a company incorporated under German
law, established in Hamburg, Germany, represented by Georg M.
Berrisch, Rechtsanwalt, Brussels and Hamburg,
applicant,
v
Commission of the European Communities, represented by Ulrich
Wölker, of its Legal Service, acting as Agent, 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 annulment of the decision of the Commission of
23 April 1998 refusing the applicant access to certain documents,
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 May 1999,
gives the following
Judgment
Legal framework
1 In the wake, inter alia, of the Final Act of the Treaty on
European Union signed at Maastricht on 7 February 1992 which
contains a Declaration (No 17) on the right of access to information,
and of several European Council meetings at which the commitment
to a more open Community was reaffirmed (see, in that connection,
Case T-105/95 WWF UK v Commission [1997] ECR II-313, paragraphs
1 to 3), the Commission and the Council, on 6 December 1993,
adopted a Code of Conduct concerning public access to Council
and Commission documents (OJ 1993 L 340, p. 41, hereinafter `the
Code of Conduct') to establish the principles governing access
to the documents they hold. The Code of Conduct provides:
`The Commission and the Council will severally take steps to
implement these principles before 1 January 1994.'
2 In implementation of that undertaking, on 8 February 1994,
on the basis of Article 162 of the EC Treaty (now Article 218
EC), the Commission adopted Decision 94/90/ECSC, EC, Euratom
on public access to Commission documents (OJ 1994 L 46, p. 58).
Article 1 of that decision formally adopted the Code of Conduct,
the text of which is annexed to the decision (hereinafter `Decision
94/90').
3 The Code of Conduct sets out 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.'
4 The factors which may be relied upon by an institution as grounds
for rejecting a request 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.'
5 The Code of Conduct also states, under the heading `Processing
of initial applications':
`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.'
6 On 4 March 1994, the Commission adopted a communication on
improved access to documents (OJ 1994 C 67, p. 5, hereinafter
`the 1994 communication'), giving details of the criteria for
implementation of Decision 94/90. That communication states that
`anyone may ... ask for access to any unpublished Commission
document, including preparatory documents and other explanatory
material'. With regard 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. ...' On that point,
the communication stresses: `There is nothing automatic about
the exemptions, and each request for access to a document will
be considered on its own merits.' As regards the processing of
confirmatory applications, the 1994 communication states:
`If an applicant is told that access is to be refused, and is
not satisfied with the explanation, he or she can ask the Commission's
Secretary-General to review the matter and either confirm or
overturn the refusal.'
Factual background to the case
7 Imports of beef and veal into the Community are subject, as
a rule, to customs duty and an additional levy. Under the General
Agreement on Tariffs and Trade (GATT), each year the Community
opens a so-called `Hilton' quota. Under that quota, certain quantities
of high-quality beef (`Hilton Beef') from Argentina may be imported
into the Community free of any levies and subject only to duty
in accordance with the applicable common customs tariff. In order
to qualify for that exemption, a certificate of authenticity
from the Argentine authorities is required.
8 The Commission was informed that certificates of authenticity
had been found to have been falsified and, in collaboration with
the customs authorities of the Member States, initiated inquiries
into the matter in late 1992 and early 1993. When the customs
authorities came to the conclusion that falsified certificates
of authenticity had been presented to them, they took action
for post-clearance recovery of the import duty.
9 After those falsifications had been discovered, the German
authorities sought post-clearance recovery of import duty from
the applicant, which requested remission of that duty, claiming
that it had presented the certificates of authenticity in good
faith and that certain deficiencies in the control procedure
were attributable to the competent Argentine authorities and
to the Commission.
10 By decision of 26 January 1996, addressed to the Federal Republic
of Germany, the Commission declared that the applicant's request
for remission of the import duty was not justified.
11 By letter of 23 February 1996 to the Secretary-General of
the Commission and to the Directors-General of Directorates-General
(`DG') I, VI and XXI, the applicant's lawyer requested access
to certain documents relating to control procedures for imports
of Hilton Beef and to the inquiries which gave rise to the German
authorities' decisions to effect post-clearance recovery of import
duty. The request concerned 10 categories of document: (1) the
declarations of the Member States of quantities of Hilton Beef
imported from Argentina between 1985 and 1992, (2) the declarations
of the Argentine authorities of quantities of Hilton Beef exported
to the Community in the same period, (3) the Commission's internal
records drawn up on the basis of those declarations, (4) the
documents relating to the opening of the `Hilton' quota, (5)
the documents relating to the designation of the bodies responsible
for issuing certificates of authenticity, (6) the documents relating
to the agreement concluded between the Community and Argentina
concerning a reduction in the quota following discovery of the
falsifications, (7) any reports of inquiries into the Commission's
control procedures as regards the `Hilton' quota in 1991 and
1992, (8) the documents relating to inquiries into any irregularities
in imports between 1985 and 1988, (9) the views of DG VI and
DG XXI on decisions taken in other similar cases and (10) the
minutes of the meetings of the group of experts from the Member
States on 2 October and 4 December 1995.
12 By letter of 22 March 1996, the Director-General of DG VI
refused the request for access both as regards the correspondence
with the Argentine authorities and the records of the discussions
prior to the granting and opening of the `Hilton' quotas and
as regards the correspondence with the Argentine authorities
following the discovery of the falsified certificates of authenticity.
That refusal was based on the exception for protection of the
public interest (international relations). As regards the remaining
documents, the Director-General also refused access to those
emanating from the Member States or the Argentine authorities,
on the ground that the applicant should address its request directly
to the various authors of those documents.
13 By letter of 25 March 1996, the Director-General of DG XXI
refused the request for access to the report of the internal
inquiry into the falsifications which had been drawn up by the
Commission, basing that refusal on the exception for protection
of the public interest (inspections and investigations) and the
exception for protection of the individual and of privacy. As
regards the positions taken by DG VI and DG XXI concerning other
requests for remission of import duty and the minutes of the
meetings of the committee of experts from the Member States,
the Director-General of DG XXI refused access to the documents
on the basis of the exception for protection of the institution's
interest in the confidentiality of its proceedings. As regards
the remaining documents, he refused access to those emanating
from the Member States, on the ground that the applicant should
address its request directly to the various authors of those
documents.
14 By letter of 27 March 1996, the applicant's lawyer submitted
a confirmatory application within the meaning of the Code of
Conduct to the Secretary-General of the Commission. In that letter,
he challenged the justification for the grounds on which the
Directors-General of DG VI and DG XXI refused access to the documents.
15 By application lodged at the Registry of the Court of First
Instance on 12 April 1996, the applicant and two other German
firms brought an action for annulment of the Commission's decision
of 26 January 1996 (Case T-50/96 Primex and Others v Commission).
16 By letter of 29 May 1996, the Secretary-General of the Commission
rejected the confirmatory application in the following terms:
`Following an examination of your request, I regret to have to
inform you that I confirm the decision of DG VI and DG XXI for
the following reasons.
The documents requested all concern a Commission decision of
26 January 1996 (doc. COM (C)96 180 final) which has since become
the subject-matter of an application for annulment brought by
your representative (Case T-50/96).
Consequently, and without prejudice to other exceptions which
might justify refusing access to the documents requested, the
exception for protection of the public interest (court proceedings)
is applicable. The Code of Conduct cannot oblige the Commission,
as a party to a pending action, to provide the other party with
documents relating to the dispute.'
17 By letter lodged at the Court Registry on 25 June 1996 in
the course of proceedings in Case T-50/96, the applicant requested
the Court to order production of the documents requested as a
measure of organisation of the procedure.
18 By application lodged at the Registry of the Court of First
Instance on 9 August 1996, the applicant brought an action for
annulment of the Commission's decision of 29 May 1996 confirming
its refusal to allow the applicant access to certain of its documents.
By its judgment in Case T-124/96 Interporc I [1998] ECR II-231,
the Court of First Instance held that the statement of reasons
in the decision of 29 May 1996 was inadequate and annulled that
decision.
19 Moreover, in the course of proceedings in Case T-50/96, in
response to the request of the Court of First Instance of 15
December 1997, the Commission produced certain documents some
of which were the same as those requested by the applicant in
the course of proceedings in Interporc I. In the present case
the applicant has confirmed that the confirmatory application
has ceased to have any purpose in so far as it relates to the
documents the Commission produced at the request of the Court
of First Instance in Case T-50/96.
20 In implementation of the judgment in Interporc I, the Commission
sent to the applicant's lawyer a further decision dated 23 April
1998 concerning the applicant's confirmatory application of 27
March 1996 and containing an identical conclusion to that in
the annulled decision of 29 May 1996 but stating different reasons
(hereinafter `the contested decision'). The contested decision
reads as follows:
`The documents you have requested may be placed in the following
categories:
1. Documents emanating from the Member States and the Argentine
authorities
- the declarations of the Member States of quantities of "Hilton"
Beef imported from Argentina between 1985 and 1992;
- the declarations of the Argentine authorities of quantities
of "Hilton" Beef exported to the Community in the same
period;
- the documents of the Argentine authorities relating to the
designation of the bodies responsible for issuing certificates
of authenticity;
- the documents of the Argentine authorities relating to the
opening of the "Hilton" quota;
- the positions taken by the Member States in similar cases.
2. Documents emanating from the Commission
- the internal records of DG VI drawn up on the basis of the
declarations of the Member States and third countries;
- the documents of the Commission relating to the designation
of the bodies responsible for issuing certificates of authenticity;
- the documents relating to the agreement on the opening of the
"Hilton" quota, the views of DG VI, views of other
departments, communications sent to the Argentine authorities;
- the documents relating to the agreement concluded between the
Community and Argentina concerning a reduction in the quota following
discovery of the falsifications, internal views of DG VI, views
of other departments (DG I, DG XXI), notes from the offices of
the Commissioners responsible, notes sent to those offices, communications
sent to the Commission delegation to Argentina, correspondence
sent to the Argentine Ambassador to the European Union;
- the Commission's report into the control procedures as regards
the "Hilton" quota;
- the views of DG VI and DG XXI on decisions taken in other similar
cases;
- the minutes of the meetings of the group of experts from the
Member States held on 2 October and 4 December 1995.
As regards the documents emanating from the Member States and
the Argentine authorities, I would advise you to request a copy
directly from those Member States and from the authorities concerned.
Whilst the Code of Conduct provides that "the public will
have the widest possible access to documents held by the Commission
and the Council", the fifth paragraph provides that "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". The Commission can therefore
in no circumstances be accused of an abuse of rights; it is merely
applying its decision of 8 February 1994 governing the implementation
of the Code of Conduct.
All the other documents concern pending legal proceedings (Case
T-50/96) and fall within the exception based on the protection
of the public interest, and, in particular, of the proper conduct
of court proceedings, expressly provided for by the Code of Conduct.
To disclose them on the basis of provisions relating to public
access to Commission documents is likely to be damaging to the
interests of the parties in those proceedings, and in particular
to the rights of the defence, and would be contrary to the special
provisions governing the disclosure of documents in court proceedings.'
21 By judgment of 17 September 1998 in Case T-50/96 Primex Produkte
Import-Export and Others v Commission [1998] ECR II-3773, the
Court of First Instance annulled the decision of 26 January 1996.
The Commission appealed against that judgment (Case C-417/98
P).
Procedure and forms of order sought
22 The application initiating the proceedings in the present
case was lodged at the Court Registry on 9 June 1998. The case
was initially allocated to a Chamber made up of three Judges.
Having heard the parties, the Court of First Instance, by decision
of 20 April 1999, decided to refer the case to a Chamber of five
Judges.
23 Upon hearing the report of the Judge-Rapporteur the Court
of First Instance (First Chamber, Extended Composition) decided
to open the oral procedure without any preparatory inquiry.
24 The parties presented oral argument and replied to the oral
questions of the Court at the hearing in open court on 19 May
1999.
25 The applicant claims that the Court should:
- annul the contested decision;
- in the alternative, annul the decision in so far as the applicant
has not already, in the course of proceedings in Case T-50/96,
obtained the documents to which it requests access;
- in any event, order the Commission to pay the costs.
26 The Commission contends that the Court should: - dismiss the
application as unfounded;
- order the applicant to pay the costs.
Substance
27 In its submissions the applicant makes a distinction between
the documents drawn up by the Commission on the one hand and
those drawn up by the Member States or the Argentine authorities
on the other.
The documents emanating from the Commission
28 The applicant relies on three pleas in law alleging that the
Commission infringed, first, the Code of Conduct and Decision
94/90, second, Article 176 of the EC Treaty (now Article 233
EC) in conjunction with the judgment in Interporc I and, third,
Article 190 of the EC Treaty (now Article 253 EC).
The plea alleging infringement of the Code of Conduct and Decision
94/90
- Arguments of the parties
29 The applicant submits, as a preliminary point, that the exception
based on the protection of the public interest, in so far as
it concerns court proceedings, covers only the documents drawn
up by the Commission for the purposes of court proceedings and
not the documents existing independently of such proceedings,
as the Court of First Instance held in Case T-83/96 Van der Wal
v Commission [1998] ECR II-545, paragraph 50, delivered more
than a month before the contested decision was adopted.
30 In the present case it is clear that none of the documents
to which the applicant has requested access was drawn up by the
Commission for the purposes of specific court proceedings. Consequently,
the exception relating to the protection of the public interest
as raised by the Commission cannot apply.
31 In the alternative, the applicant submits that the Commission
does not specify what procedural rights would be jeopardised
by the disclosure of the documents requested and in what way.
32 The Commission contends that the contested decision is in
conformity with the judgment in Van der Wal and that, moreover,
it followed that judgment when deciding how to proceed. It follows
from Van der Wal that the Commission may rely on the exception
based on the protection of the public interest (court proceedings),
even where it is not a party to any such proceedings.
33 Moreover, it is clear from the use of the expression `in that
respect' at paragraph 50 of the judgment in Van der Wal that
it is only where the Commission is not itself a party to proceedings
that it is necessary to make a distinction between the documents
drawn up solely for the purposes of specific court proceedings
and those which exist independently of such proceedings and to
limit the application of the exception based on the protection
of the public interest to the first category of documents.
34 In situations other than those described in Van der Wal it
is justifiable to accord different treatment to documents which
were not drafted for the purposes of court proceedings but which
are none the less `connected' with such proceedings.
35 If the Commission were obliged to grant its opponent access
to documents concerning the subject-matter of the litigation
in the course of proceedings, the rights of the defence would
be undermined, the need to safeguard which is a fundamental principle
of the Community legal order (Case 347/87 Orkem v Commission
[1989] ECR 3283, paragraph 32).
36 At the hearing the Commission made clear, however, that the
exception at issue is applicable only during the course of the
proceedings it is intended to protect.
37 Finally, the Commission contends that the question whether
the applicant or any other person may have access to the documents
requested can only be appraised in the light of the provisions
of the Rules of Procedure of the Community courts, applicable
as a lex specialis, and not on the basis of the Code of Conduct
governing the right of access of the general public.
-Findings of the Court
38 It should be observed that, in accordance with the Code of
Conduct, the right of access to documents is subject to two categories
of exception, the first mandatory and the second optional. Those
exceptions must be interpreted strictly, in order not to frustrate
the application of the general principle of giving the public
`the widest possible access to documents held by the Commission'
(Interporc I, paragraph 49, and Case T-174/95 Svenska Journalistförbundet
v Council [1998] ECR II-2289, paragraph 110).
39 Before going on to interpret the exception at issue, the Court
would point out that Decision 94/90 was adopted with the objective
of making the Community more open, the transparency of the decision-making
process being a means of strengthening the democratic nature
of the institutions and the public's confidence in the administration
(Declaration No 17). Similarly, the transparency called for by
European Councils, in order to allow the public `the widest possible
access to documents' as stated in the Code of Conduct, is essential
in order to enable citizens to carry out genuine and efficient
monitoring of the exercise of the powers vested in the Community
institutions, and thereby increase confidence in the administration.
40 In the light of those considerations and in view of the requirement
to interpret the exception strictly, the expression `court proceedings'
must be interpreted as meaning that the protection of the public
interest precludes the disclosure of the content of documents
drawn up by the Commission solely for the purposes of specific
court proceedings.
41 The words `documents drawn up by the Commission solely for
the purposes of specific court proceedings' must be understood
to mean not only the pleadings or other documents lodged, internal
documents concerning the investigation of the case before the
court, but also correspondence concerning the case between the
Directorate-General concerned and the Legal Service or a lawyers'
office. The purpose of this definition of the scope of the exception
is to ensure both the protection of work done within the Commission
and confidentiality and the safeguarding of professional privilege
for lawyers.
42 However, the exception based on the protection of public interest
(court proceedings) contained in the Code of Conduct cannot enable
the Commission to escape from its obligation to disclose documents
which were drawn up in connection with a purely administrative
matter. That principle must be respected even if the disclosure
of such documents in proceedings before the Community judicature
might be prejudicial to the Commission. The fact that court proceedings
for annulment were initiated against the decision taken following
the administrative procedure is immaterial in that regard.
43 The interpretation proposed by the Commission runs counter
to one of the essential objectives of Decision 94/90, namely
to give citizens the opportunity to monitor more effectively
the lawfulness of the exercise of public powers.
44 As regards the Commission's arguments concerning the scope
of Decision 94/90, it should be pointed out that it is clear
from the general structure of that decision that it applies generally
to requests for access to documents emanating from the public.
Whilst in Case T-50/96, Interporc, in its capacity as applicant,
was able to rely on the provisions of the Rules of Procedure
which relate to measures of organisation of the procedure or
the rights of the defence in order to obtain some of the documents
it had requested in its initial application of 23 February 1996,
it none the less retains the option of requesting access to the
same documents pursuant to Decision 94/90. Moreover, in its 1994
communication, the Commission stated that, following the adoption
of the Code of Conduct by Decision 94/90, `anyone may now ask
for access to any unpublished Commission document, including
preparatory documents and other explanatory material'.
45 Support for that finding is to be found in the preamble to
the Code of Conduct, according to which `the said principles
[that is to say, the right to have access to documents] are without
prejudice to the relevant provisions on access to files directly
concerning persons with a specific interest in them'. That statement
merely affirms that any provisions governing the right of access
to information the Commission might adopt would not affect the
application of specific provisions concerning access to files.
Furthermore, it does not preclude reliance on the Code of Conduct
by persons who are also covered by other provisions.
46 Next, the fact that the applicant obtained access to some
of the documents mentioned in its initial application of 23 February
1996 in the course of proceedings in Case T-50/96 cannot deprive
it of its right under Decision 94/90 to seek disclosure of those
documents which were not produced to it.
47 That curtailment of the scope of Decision 94/90 for which
the Commission contends could only result from the decision itself.
However the decision contains no provision to that effect.
48 It follows that the Commission has misapplied the exception
based on the protection of the public interest (court proceedings)
and that the Code of Conduct can be relied on by the applicant
in support of its request for access to documents in the present
case.
49 Accordingly the contested decision must be annulled in so
far as it refuses to authorise access to documents emanating
from the Commission without there being any need to consider
the other pleas raised by the applicant in that connection.
The documents emanating from the Member States or the Argentine
authorities
50 The applicant relies on three pleas alleging, first, the unlawfulness
of the contested decision in so far as it is based on the authorship
rule, second, infringement of Decision 94/90 and the Code of
Conduct and, third, infringement of Article 190 of the Treaty.
The plea alleging the unlawfulness of the contested decision
in so far as it is based on the authorship rule
- Arguments of the parties
51 The applicant submits that, under Article 2(2) of Decision
94/90, it was for the Secretary-General, following the confirmatory
application of 27 March 1996, to undertake a full review of the
application for access and to ascertain in the light of that
review whether the reasons given by the Directors-General of
DGs VI and XXI to justify their refusal were well founded or
not.
52 As the Secretary-General did not express a view on the argument
based on the authorship rule in his decision of 29 May 1996,
in the applicant's submission he is no longer entitled to rely
on it. Accordingly, the contested decision should be annulled
in so far as it too is based on that argument.
53 The Commission contends that a full review of the documents
requested must be undertaken when a confirmatory application
is considered. None the less the Secretary-General is entitled
to base his decision on a single decisive ground. The contested
decision could, therefore, be based on reasons which were not
considered in the decision of 29 May 1996, annulled by the judgment
in Interporc I.
- Findings of the Court
54 First of all, the various stages of the administrative procedure
should be recapitulated. By letter of 23 February 1996 the applicant
requested access to certain documents relating to the control
procedure for imports of `Hilton Beef', including the documents
at issue. By letters of 22 and 25 March 1996, the Directors-General
of DG VI and XXI rejected the applications for access, citing
the exception based on the protection of the public interest
(international relations), the authorship rule, the exception
based on the protection of the public interest (inspections and
investigations) and that based on the protection of the individual
and of privacy. By letter of 27 March 1996 to the Secretary-General
of the Commission, the applicant's legal representative contested
those refusals and submitted a confirmatory application. By letter
of 29 May 1996, the Secretary-General rejected the confirmatory
application, citing the exception based on the protection of
the public interest (court proceedings). By its judgment in Interporc
I, the Court of First Instance held that the decision of 29 May
1996 was inadequately reasoned and annulled it. In implementation
of the judgment in Interporc I, the Secretary-General again rejected
the confirmatory application citing not only the exception based
on the protection of the public interest (court proceedings)
but also the authorship rule.
55 It follows from the judgment in Interporc I, first, that the
Secretary-General was required, under Article 176 of the Treaty,
to take a further decision in implementation of that judgment
and, second, that the decision of 29 May 1996 is deemed to have
never existed.
56 Accordingly, it cannot be inferred from Article 2(2) of Decision
94/90 and the 1994 communication that the Secretary-General could
not rely on grounds other than those on which he took a position
in his initial decision. He was therefore entitled to undertake
a full review of the applications for access and base the contested
decision on the authorship rule.
57 It follows that this plea must be dismissed.
The plea alleging infringement of Decision 94/90 and the Code
of Conduct
- Arguments of the parties
58 The applicant submits that it is clear from the Code of Conduct,
and in particular from the definition of the term `document',
that access must be granted to all documents held by the Commission,
regardless of authorship. On that point it also cites Declaration
No 17, which speaks of `information available to the institutions'.
59 It submits that the authorship rule, according to which documents
of which the Commission is not the author are excluded from the
scope of the Code of Conduct, is not lawful. A procedural rule
cannot restrict the scope of that code by excluding certain documents.
That rule is therefore invalid as it breaches the underlying
principle of the code adopted by Decision 94/90.
60 In any event, the reasons stated for the contested decision
on the basis of that rule are contrary to the underlying principle
of the Code of Conduct. Those reasons also constitute an abuse
of rights in that they serve to exclude the documents concerned
from the scope of the code.
61 In the alternative, the applicant submits that the rule must
be interpreted strictly, so that it remains compatible with the
principle of the widest possible access to documents.
62 The Commission contends that, in the Code of Conduct, the
principle of the `widest possible access to documents' is qualified
by the authorship rule, which thus restricts the scope of the
code. Moreover, the Code of Conduct only makes reference to Declaration
No 17 in vague terms and that declaration, essentially, merely
recommends that the Commission submit a report. However, at the
hearing the Commission stated that the authorship rule does not
bar it from granting access to the documents concerned but simply
means that their disclosure is not mandatory. The Commission
also disputed that there is a rule of law of a higher order on
which the applicant might be able to rely in order to plead that
the authorship rule is void.
63 Moreover, the applicant has in no way demonstrated that there
has been an abuse of its rights.
64 Finally, the Commission contends, in the alternative, that
the question of a wide or strict interpretation of the authorship
rule does not arise in the present case. The Commission maintains
that the applicant is simply attempting to have that rule disapplied.
- Findings of the Court
65 On a preliminary point, as to the question whether the authorship
rule is to be disapplied, it should be observed that the Court
of Justice, in its judgment in Case C-58/94 Netherlands v Council
[1996] ECR I-2169, paragraph 37, concerning public access to
documents, held as follows:
`So long as the Community legislature has not adopted general
rules on the right of public access to documents held by the
Community institutions, the institutions must take measures as
to the processing of such requests by virtue of their power of
internal organisation, which authorises them to take appropriate
measures in order to ensure their internal operation in conformity
with the interests of good administration.'
66 In the light of that judgment, it must be held that, so long
as there is no rule of law of a higher order according to which
the Commission was not empowered, in Decision 94/90, to exclude
from the scope of the Code of Conduct documents of which it was
not the author, the authorship rule can be applied. The fact
that Decision 94/90 makes reference to declarations of general
policy such as Declaration No 17 and the conclusions of several
European Councils, does not alter that finding, as such declarations
do not have the force of a rule of law of a higher order.
67 As regards the interpretation of the authorship rule, it should
be borne in mind, 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).
68 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 I,
cited above, paragraph 49).
69 In must be held, in that regard, that the authorship rule,
however it may be characterised, 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 (Case T-188/97 Rothmans International v Commission
[1999] ECR II-2463, paragraphs 53 to 55).
70 At the hearing, the Commission acknowledged that the application
of the authorship rule might give rise to difficulty where there
is some doubt as to the authorship of a document. It is in precisely
such cases that it is important to construe and apply the authorship
rule strictly.
71 In the light of the foregoing observations, the Court must
determine whether the authorship rule is applicable to the five
types of documents emanating from the Member States or the Argentine
authorities mentioned in the contested decision.
72 The five types of document in question comprise, first, the
declarations of the Member States of quantities of Hilton Beef
imported from Argentina between 1985 and 1992, second, the declarations
of the Argentine authorities of quantities of Hilton Beef exported
to the Community in the same period, third, the documents of
the Argentine authorities relating to the designation of the
bodies responsible for issuing certificates of authenticity,
fourth, the documents of the Argentine authorities relating to
the opening of the `Hilton' quota and, fifth, the positions taken
by the Member States in similar cases.
73 It is clear, on examination of the five types of documents,
that their authors are either the Member States or the Argentine
authorities.
74 It follows that the Commission has applied the authorship
rule correctly in taking the view that it was not required to
grant access to those documents. It cannot, therefore, have committed
an abuse of rights. Accordingly, the applicant's plea alleging
infringement of Decision 94/90 and the Code of Conduct must be
dismissed as unfounded.
The plea alleging infringement of Article 190 of the Treaty
- Arguments of the parties
75 The applicant submits, as regards the documents emanating
from the Member States or the Argentine authorities, that, in
the contested decision, the Commission should have explained
why the authorship rule justified the refusal of access to the
documents. The Commission therefore infringed Article 190 of
the Treaty.
76 The Commission contends that the statement in the contested
decision that it is not the author of the documents constitutes
an adequate statement of the reasons for application of the authorship
rule.
- Findings of the Court
77 According to consistent case-law, the obligation to state
reasons, laid down in Article 190 of the Treaty, 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 (WWF v Commission, cited above,
paragraph 66).
78 In the present case, in the contested decision the Commission
referred to the authorship rule and informed the applicant that
it should request a copy of the documents in question from the
Member States concerned or the Argentine authorities. Such a
statement of reasons shows clearly the reasoning of the Commission.
The applicant was thus in a position to know the justification
for the contested measure and the Court of First Instance is
in a position to exercise its power to review the legality of
that decision. Accordingly, the applicant is not justified in
maintaining that a more specific statement of reasons was required
(see Rothmans International v Commission, cited above, paragraph
37).
79 It follows that this plea must be dismissed. Accordingly,
the contested decision should not be annulled in so far as it
relates to the documents emanating from the Member States or
the Argentine authorities.
Costs
80 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. However, under Article 87(3), the Court may
order that the costs be shared or that the parties bear their
own costs if each party succeeds on some and fails on other heads.
As both of the parties have been partially unsuccessful, they
must be ordered to bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE
(First Chamber, Extended Composition)
hereby:
1. Annuls the decision of the Commission of 23 April 1998 in
so far as it refuses access to documents emanating from the Commission;
2. Dismisses the remainder of the application;
3. Orders the parties to bear their own costs. |
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