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In Case T-123/99,
JT's Corporation Ltd, established in Bromley (United Kingdom),
represented by M. Cornwell-Kelly, Solicitor, with an address
for service in Luxembourg at the Chambers of Wilson Associates,
3 Boulevard Royal,
applicant,
v
Commission of the European Communities, represented by U. Wölker
and X. Lewis, of its Legal Service, acting as Agents, with an
address for service in Luxembourg at the office of C. Gómez
de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION for the annulment of the Commission's decision of
11 March 1999 refusing the applicant access to certain documents,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
(Fourth Chamber),
composed of: V. Tiili, President, R.M. Moura Ramos and P. Mengozzi,
Judges,
Registrar: B. Pastor, Principal Administrator,
having regard to the written procedure and further to the hearing
on 29 March 2000,
gives the following
Judgment
Legal background
1 In the Final Act of the Treaty on European Union, the Member
States incorporated a Declaration (No 17) on the right of access
to information (`Declaration No 17'), 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 6 December 1993, the Council and the Commission approved
a Code of Conduct concerning public access to Council and Commission
Documents (OJ 1993 L 340, p. 41; `the Code of Conduct'), designed
to establish the principles governing access to the documents
held by them.
3 The Commission adopted that Code of Conduct by Decision 94/90/ECSC,
EC, Euratom of 8 February 1994 on public access to Commission
documents (OJ 1994 L 46, p. 58).
4 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'.
5 Under the third paragraph of the section headed `Processing
of initial applications', the Code of Conduct provides as follows
(hereinafter referred to as the `authorship rule'):
`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 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 under the heading 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),
...
They may also refuse access in order to protect the institution's
interest in the confidentiality of its proceedings.'
7 On 4 March 1994, Commission Communication 94/C 67/03 on improved
access to documents, which explains the conditions for implementation
of Decision 94/90, was published (OJ 1994 C 67, p. 5). According
to that communication, `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'.
8 Council Regulation (EEC) No 1468/81 of 19 May 1981 on mutual
assistance between the administrative authorities of the Member
States and cooperation between the latter and the Commission
to ensure the correct application of the law on customs or agricultural
matters (OJ 1981 L 144, p. 1), as amended by Council Regulation
(EEC) No 945/87 of 30 March 1987 (OJ 1987 L 90, p. 3), provides
in Article 15b:
`... For the purposes of attaining the objectives of this Regulation
the Commission may, under the conditions laid down in Article
15a, carry out Community administrative and investigative missions
in third countries in coordination and close cooperation with
the competent authorities of the Member States.
...'
9 Article 15c of the same regulation provides:
`The findings established and the information obtained in the
context of the Community missions referred to in Article 15b,
particularly in the form of documents passed on by the competent
authorities of the third countries concerned, shall be dealt
with in accordance with Article 19.
Original documents obtained or certified copies thereof shall
be delivered by the Commission to the competent authorities of
the Member States, at the said authorities' request, for use
in connection with judicial proceedings or proceedings instituted
for failure to comply with the law on customs or agricultural
matters.'
10 Article 19 of Regulation No 1468/81 is worded as follows:
`1. Any information communicated in whatever form pursuant to
this Regulation shall be of a confidential nature. It shall be
covered by the obligation of professional secrecy and shall enjoy
the protection extended to like information under both the national
law of the Member State which received it and the corresponding
provisions applying to the Community authorities.
The information referred to in the first subparagraph may not
in particular be sent to persons other than those in the Member
States or within the Community institutions whose duties require
that they have access to it. Nor may it be used for purposes
other than those provided for in this Regulation, unless the
authority supplying it has expressly agreed and in so far as
the provisions in force in the Member State where the authority
which received it is situated do not preclude such communication
or use.
2. Paragraph 1 shall not impede the use, in any legal actions
or proceedings subsequently instituted in respect of non-compliance
with the law on customs or agricultural matters, of information
obtained pursuant to this Regulation.
The competent authority of the Member State which supplied this
information shall be informed forthwith of such utilisation.'
11 Regulation No 1468/81 was repealed and replaced with effect
from 13 March 1998 by Council Regulation (EEC) No 515/97 of 13
March 1997 on mutual assistance between the administrative authorities
of the Member States and cooperation between the latter and the
Commission to ensure the correct application of the law on customs
and agricultural matters (OJ 1997 L 82, p. 1).
Background to the dispute
12 The applicant is an importer of textiles coming mainly from
Bangladesh. During 1997 and 1998, it received several post-clearance
demands for customs duty totalling UKL 661 133.89. Those demands
were in respect of certain imports of goods under Chapter 61
of the Common Customs Tariff, carried out in 1994, 1995 and 1996.
13 The imports concerned had initially been exempted from import
duties, on presentation of certificates of origin under the generalised
system of preferences (hereinafter `GSP Forms A'), certifying
that the origin of the goods was Bangladesh. Those GSP Forms
A were subsequently declared void by the Bangladesh Government.
14 The applicant has challenged the post-clearance demands for
customs duty before a United Kingdom court. Presuming that certain
documents in the Commission's possession might help to clarify
the reasons for the annulment of the GSP Forms A, the applicant
asked the Commission in a letter of 20 November 1998 for access
to certain documents, namely:
- the mission reports of the European Union from 1993 to 1996
concerning Bangladesh, together with the annexes thereto (`Category
1' of the requested documents);
- the replies of the Government of Bangladesh (`Category 2');
- the Commission's decisions with regard to the mission reports
(`Category 3')
- the correspondence between the Commission and the Government
of Bangladesh concerning the annulment of the GSP Forms A (`Category
4');
- the reports or summaries compiled or received by the Commission
regarding the operation and conduct of the GSP scheme for textile
products imported from Bangladesh between 1991 and 1996 (`Category
5').
15 By letter of 15 December 1998, the Commission refused access
to those documents. The applicant then confirmed its application
by letter of 7 January 1999. By letter of 18 February 1999, the
Commission informed the applicant that it would deal with the
confirmatory application as soon as possible and would take a
decision subsequently. Finally, by letter of 11 March 1999 (hereinafter
`the decision' or `the contested decision'), the Commission rejected
the confirmatory application in the following terms:
`... Concerning the first category and part of the fourth category
of documents (the mission reports and annexes, and the correspondence
of the Commission with the Government of Bangladesh regarding
the cancellation of the GSP Forms A): these reports are covered
by the exception regarding the protection of the public interest,
since they concern the Commission's inspection and investigation
tasks. This exception to the rule of access is expressly provided
for in the Code of Conduct concerning public access to Commission
and Council documents, adopted by the Commission on 8 February
1994. It is indeed essential for the Commission to be able to
conduct such investigations, the aim of which is to investigate
the authenticity and regularity of certificates while respecting
the confidential nature of such proceedings. In addition, sincere
cooperation and a climate of mutual confidence between the Commission,
the Member States concerned - which participated in the mission
- and the Government of Bangladesh are required in order to ensure
compliance with customs legislation.
Moreover, the Commission did carry out the enquiry in Bangladesh
under Regulation No 1468/81 ... Indeed, Article 15b of that amended
regulation allows the Commission to conduct Community administrative
and investigative cooperation missions in third countries in
coordination and close cooperation with the competent authorities
of the Member States. The findings and information obtained in
the course of these Community missions are to be handled in accordance
with Article 19 of the regulation, which lays down strict confidentiality
conditions on the use and exchange of information within the
provisions on mutual assistance. In accordance with that article,
both the Commission and the Member States' authorities are prohibited
from transmitting information obtained in the context of the
enquiries to anyone other than those in the Member States' administrations
or within the Community institutions whose functions require
them to know or to use it.
Concerning the second category and part of the fourth category
of documents (responses of the Government of Bangladesh to the
report on its agencies, and correspondence from the Government
of Bangladesh to the Commission regarding the cancellation of
GSP Forms A), the abovementioned Code of Conduct specifies 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". Therefore,
as these letters are not Commission documents, I suggest you
contact directly the authorities which produced them.
Concerning the third category of documents (Commission decisions
with respect to the mission reports), I can advise you that,
as there have been no "Commission Decisions" with respect
to any of the mission reports which you have specified, such
documents do not exist.
Concerning the fifth category of documents (reports or summaries
compiled or received by the Commission with regard to the operation
and conduct of the GSP scheme relating to textile goods from
Bangladesh between 1991 and 1996), your request covers such a
large number of documents that it is completely impractical to
undertake an exercise which would encompass many of the archives
of other Directorates-General, as well as the UCLAF's for this
period (the volume of correspondence on this subject, together
with reports and annexes would exceed several thousand documents).
I would thus suggest [that] you [make] your request on this point
[more specific]. ...'
Procedure and forms of order sought by the parties
16 By application lodged at the Registry of the Court of First
Instance on 21 May 1999, the applicant brought the present action.
17 The written procedure closed on 15 October 1999.
18 Upon hearing the report of the Judge-Rapporteur, the Court
of First Instance (Fourth Chamber) decided to open the oral procedure
and, by way of measures of organisation of procedure, asked the
parties to reply to written questions and to produce certain
documents. The parties complied with those requests.
19 The parties presented oral argument and replied to the oral
questions of the Court of First Instance at the hearing in open
court on 29 March 2000.
20 The applicant claims that the Court should:
- annul the contested decision;
- order the Commission to pay the costs.
21 The Commission contends that the Court should:
- dismiss the action as inadmissible or, in the alternative,
as unfounded as regards the alleged refusal to authorise access
to documents in `Category 5';
- dismiss the action as inadmissible or, in the alternative,
as unfounded, for lack of an interest in bringing an action in
so far as it concerns the refusal to authorise access to the
mission report of November-December 1996;
- dismiss the action as unfounded as to the remainder;
- order the applicant to pay the costs.
Admissibility
The admissibility of the action in so far as it concerns the
reports or summaries compiled or received by the Commission regarding
the operation of the generalised preference scheme for textile
products imported from Bangladesh between 1991 and 1996
22 The Commission states that it did not refuse access to the
documents in Category 5, but merely asked the applicant to be
more specific about its application, which the applicant subsequently
failed to do.
23 The Commission concludes that it did not take a decision in
relation to this category of documents. Therefore, the present
action for annulment is partly inadmissible.
24 The Court finds that the applicant's request for access, in
particular to the documents in Category 5, met initially with
a rejection decision by the Commission. In that respect, it should
be noted that Article 2(4) of Decision 94/90 provides that `failure
to reply within one month of an application for review being
made constitutes a refusal'. In this case, the Commission did
not reply to the confirmatory application within that period
of one month from receipt. The documents before the Court show
that the Commission, which received the applicant's confirmatory
application on 18 January 1999, merely informed the applicant,
by letter of 18 February 1999, that it would deal with the application
as soon as possible and that it would send its reply later. Therefore,
at the expiry of the one-month period following the Commission's
receipt of the confirmatory application, there was in existence
a decision rejecting that application. However, the letter of
11 March 1999 replaced that implicit rejection decision and constitutes,
in relation to the latter, a decision containing a new factor,
namely the replacement of the previous refusal to give the applicant
access to the Category 5 documents with an invitation to be more
specific about the request for access to those documents.
25 The next point to note is that, by inviting the applicant
to make its request more specific, in view of the large number
of documents concerned, the Commission expressly left open the
examination of that part of the request for access and clearly
did not exclude the possibility of granting access to some of
those documents (see, by analogy, the order of the Court of Justice
in Case C-64/93 Donatab v Commission [1993] ECR I-3595, paragraphs
13 and 14, and the order of the Court of First Instance in Case
T-182/98 UPS Europe v Commission [1999] ECR II-2857, paragraphs
39 to 45). The Commission's position concerning access to that
category of documents is not therefore final.
26 It follows that the action is inadmissible in so far as it
relates to the Category 5 documents.
The admissibility of the action in so far as it concerns the
mission report of November-December 1996
Arguments of the parties
27 The Commission observes that the applicant already has this
`Category 1' document, which is, moreover, reproduced in Annex
5 to the application. The document was sent to the applicant
by the British customs authorities on 22 July 1998, after the
removal of certain information. The Commission emphasises in
that respect that the applicant has not specified in any of its
letters that it wished to have access to the information removed
by the British authorities.
28 The Commission concludes that the applicant has no interest
in obtaining access to that document.
29 The applicant explains that it received an extract from the
mission report in question and copies of the correspondence concerning
the negotiations between the Commission and the Government of
Bangladesh, but that certain information such as the `statements
of Bangladeshi companies' in Annex 1 to the report has been removed.
Nor, moreover, were the reports, notes, statements, invoices
and correspondence collected by the mission and annexed to the
report sent to the applicant. The applicant also observes that
it received the extract from that mission report on 11 May 1999,
and thus after the contested decision was adopted.
Findings of the Court of First Instance
30 The Court finds that the applicant has not had full access
to the mission report of November-December 1996. The fact that
the applicant has had access to part of one of the documents
referred to in its application cannot deprive it of the right
to apply for disclosure of the other parts of that document and
of the other documents to which it has not yet obtained access
(Case T-92/98 Interporc v Commission [1999] ECR II-3521, paragraph
46). Therefore, contrary to what the Commission maintains, the
applicant has an interest in obtaining the annulment of the refusal
to grant access to the mission report of November-December 1996.
Substance
31 The applicant raises, essentially, two pleas in law in support
of its action, alleging infringement, first, of Decision 94/90
and Regulation No 1468/81, and, secondly, of Article 190 of the
EC Treaty (now Article 253 EC).
The first plea, alleging infringement of Decision 94/90 and Regulation
No 1468/81
32 This plea needs to be examined in relation to the various
documents to which access has been requested.
Mission reports and correspondence from the Commission to the
Bangladesh Government
Arguments of the parties
33 The applicant states that exceptions to the rule that access
is to be given must be interpreted narrowly, so that application
of the general principle of conferring on the public the widest
possible access to documents held by the Commission should not
be thwarted. It also points out that the Commission must examine
in relation to each document requested whether disclosure is
in fact likely to undermine one of the interests protected.
34 In this case, the applicant maintains, there is no evidence
that disclosure of the information sought might prejudice an
inspection or an investigation, especially since the inspection
and investigation work has already been completed. Nor, in its
submission, can the fact that the documents concerned were produced
in the context of mutual cooperation between the Commission,
the Member States and the government of a non-member country
alter the nature of the information contained in those documents.
That information deals with purely factual questions as to the
entitlement of certain exports of goods to duty reliefs, such
exports having previously been certified as attracting such relief.
The applicant does not regard the information in question as
inherently confidential or sensitive. It does not relate, for
example, to matters of public or commercial policy or to diplomatic
issues.
35 The applicant further states that, under Article 19(2) of
Regulation No 1468/81, the use, in legal actions or proceedings
subsequently instituted in respect of non-compliance with customs
legislation, of information obtained pursuant to the same regulation
may not be impeded. In this case, the information requested of
the Commission was intended precisely for use in legal proceedings.
Therefore, to claim that such information is confidential, as
the Commission does, runs contrary to Article 19(2) of Regulation
No 1468/81.
36 In this case, moreover, refusal of access infringed the principle
of compliance with the rights of defence. The information to
which the applicant requested access was used to justify demands
for post-clearance recovery of customs duties, whilst the applicant
was unable to defend itself effectively by reason of the refusal
by the Commission. On that point, the applicant adds that, in
the United Kingdom, it is for the person appealing against a
demand for post-clearance recovery to establish that the customs
duties were not due. Moreover, the national court hearing the
dispute as to whether the duties were due has no jurisdiction
to compel the Commission to produce documents.
37 The Commission makes the preliminary observation that a national
court can order the Commission to communicate specified documents
to it unless such communication is likely to interfere with the
functioning and independence of the Communities, in which situation
the institution may be justified in refusing. Consequently, the
national court before which the applicant has challenged the
customs duties demanded of it could request the Commission to
communicate documents to it in so far as communication of them
does not fall within the exception referred to above.
38 The Commission then states that the documents in question
were drawn up within the context of investigations conducted
pursuant to Regulation No 1468/81. They therefore belong to the
category of documents relating to inspections and investigations
which fall within the mandatory exception relating to the protection
of the public interest. The Commission explains in that respect
that a climate of mutual confidence between the Commission, the
Member States and the Government of Bangladesh is necessary to
ensure that Community customs legislation is complied with. The
inspections carried out from July 1996 onwards were designed
to establish whether the Bangladeshi authorities had issued certificates
of origin in accordance with the legislation in force. A climate
of cooperation was essential in that context, especially since
the Community considered it unsafe to make inspections in Bangladesh
from 1995 until May 1996.
39 The Commission challenges the applicant's interpretation of
Regulation No 1468/81, and states that that regulation lays down
a principle that information obtained in the context of investigations
is confidential. It acknowledges that there is an exception to
that principle in respect of judicial proceedings, but argues
that that exception only releases the competent authorities of
the Member States or the Commission from their strict obligation
of confidentiality if that information is needed by the authorities
in connection with judicial proceedings. The individuals concerned
cannot, on the strength of that exception, claim a right of access
to that information simply because judicial proceedings are pending.
That right is granted to those individuals and may be exercised
by them only in the context defined by national legislation on
procedure, where the competent authorities use that information
in judicial proceedings.
40 The Commission further observes that its investigation into
the circumstances in which the Bangladeshi authorities issued
certificates of origin has not yet been completed. Even if it
had been completed, the Commission would legitimately have been
able to refuse the access requested.
41 Finally, the Commission states that the national administration,
which is a party to the proceedings before a British court, may
communicate the documents concerned to the applicant pursuant
to Article 19(2) of Regulation No 1468/81. The question whether
that national administration is obliged to communicate them is
a matter of domestic law. In any event, a possible infringement
of the applicant's rights of defence in the course of the national
proceedings is not a circumstance which is capable of conferring
upon the applicant greater rights pursuant to Decision No 94/90
than those of any other person seeking access to the documents.
42 In its reply, the applicant refers to the judgment in Case
T-14/98 Hautala v Council [1999] ECR II-2489, in which the Court
of First Instance held that an institution that has been presented
with a request for access to documents is required to examine
whether partial access should be granted to information not covered
by the exceptions, and that the public interest might in some
cases be adequately protected by the removal, after examination,
of passages in a document which might harm that interest.
43 The Commission maintains that the applicant's reference to
the judgment in Hautala v Council constitutes a new plea in law
and is thus inadmissible under Article 48(2) of the Rules of
Procedure. It submits, moreover, that the plea, which it regards
as being based on infringement of the principle of proportionality,
is unfounded in any event.
Findings of the Court of First Instance
44 As a first point, the Court finds that the Commission's argument
that the reference in the reply to the judgment in Hautala constitutes
a new, and therefore inadmissible, plea cannot be accepted. That
judgment merely clarifies the scope of the right of access as
laid down by the Code of Conduct, by specifying that the exceptions
to that right must be interpreted in the light of the principle
of the right to information and the principle of proportionality
and that, therefore, the institution is required to examine whether
partial access should be granted, that is to say access to information
that is not covered by the exceptions (Hautala, paragraph 87).
Therefore, the reference to that judgment in the applicant's
reply forms part of the plea, already contained in the application,
alleging infringement of Decision 94/90, to which the Code of
Conduct is annexed.
45 Moreover, in reply to a question put to it during the oral
procedure, the Commission stated that it is accustomed when dealing
with requests for access to examining the possibility of granting
partial access. It follows that the Commission does not in any
way deny the relevance of the principles raised in Hautala.
46 However, the contested decision does not contain any indication
that such an examination took place. On the contrary, the reasons
given for that decision (see paragraph 15 above) show that the
Commission reasoned by reference to categories of documents and
not on the basis of the actual information contained in the documents
in question. The Commission limited itself to stating that the
mission reports `are covered by the exception regarding the protection
of the public interest, since they concern the Commission's inspection
and investigation tasks', explaining only that, for the Commission,
it is `essential ... to be able to conduct such investigations
whose aim is to investigate the authenticity and regularity of
certificates whilst respecting the confidential nature of such
proceedings' and that `sincere cooperation and a climate of mutual
confidence ... are required in order to ensure compliance with
customs legislation'. By expressing itself in those terms, the
Commission implies that it has not assessed specifically whether
the exception concerning the protection of the public interest
genuinely applies to the whole of the information contained in
those documents.
47 Moreover, the Commission's argument is invalidated by the
extract from the mission report of November-December 1996, which
was sent to the applicant by the British authorities and which
is annexed to its application. An examination of that extract
shows that much of the information which it contains consists
of descriptions and factual findings that clearly do no harm
to inspection and investigation tasks or, therefore, to the public
interest (see Case T-188/98 Kuijer v Council [2000] ECR II-0000,
paragraph 57).
48 It follows from the above that, in so far as it concerns the
mission reports (`Category 1') and correspondence sent by the
Commission to the Government of Bangladesh (`Category 4', part),
the contested decision is vitiated by manifest errors in the
application of Decision 94/90 and must therefore be annulled
(Hautala, paragraphs 87 and 88).
49 That conclusion is not invalidated either by the Commission's
argument concerning the possibility that the national court hearing
the dispute between the applicant and the British authorities
might have jurisdiction to ask the Commission to produce the
documents concerned (see paragraph 37 above), or by its argument
that the right of access of a party to national legal proceedings
is a matter for domestic law (see paragraph 41 above). Those
arguments are irrelevant to the decision in this case. Communication
94/C 67/03 makes it plain that any person may at any time submit
a request for access to documents held by the Commission (see
paragraph 7 above). Once such a request has been submitted, the
provisions of Decision 94/90 apply, and the Commission must examine
that request in the light of the general principle contained
in the Code of Conduct, annexed to that decision, whereby the
public is to have the widest possible access to the documents
which it holds (see Joined Cases C-174/98 P and C-189/98 P Netherlands
and Van der Wal v Commission [2000] ECR I-1, paragraphs 27 to
29; Interporc, paragraphs 44 and 45).
50 Similarly, the Commission cannot justify its refusal to grant
access to the documents referred to in the applicant's request
on the basis of Regulation No 1468/81 or Regulation No 515/97,
which lay down the principle that information obtained in customs
investigations is confidential. The Code of Conduct, the text
of which is annexed to Decision 94/90, sets out an essential
right, namely that of access to documents. That code was adopted
with the aim of making the Community more transparent, 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). Regulation No 1468/81,
as far as it is to be applied as a lex specialis, cannot be interpreted
in a sense contrary to Decision 94/90, whose fundamental objective
is to give citizens the opportunity to monitor more effectively
the lawfulness of the exercise of public powers (Interporc, paragraphs
37 to 39 and 43 to 47; Case T-188/97 Rothmans v Commission [1999]
ECR II-2463, paragraph 53; Case T-309/97 Bavarian Lager v Commission
[1999] ECR II-3217, paragraphs 36 and 37). Moreover, Article
19(2) of Regulation No 1468/81 and Article 45(3) of Regulation
No 515/97, applicable as from 13 March 1998, provide that the
confidential nature of the information in question `shall not
impede the use, in any legal actions or proceedings subsequently
instituted in respect of non-compliance with the law on customs
or agricultural matters, of information obtained pursuant to
this Regulation'. In this case, as the applicant has rightly
pointed out, its request for access has indeed been made within
the context of a legal action.
Correspondence sent by the Government of Bangladesh to the Commission
- Arguments of the parties
51 The applicant maintains that the authorship rule should be
interpreted as meaning that an application for documents must
be made to the authors only where the Commission does not hold
originals or copies. To require an applicant to seek documents
from bodies that do not come within the ambit of judicial review,
when those documents are in the possession of the Commission,
would circumvent the purpose of Decision 94/90 and Declaration
No 17. In that respect, the applicant further states that Decision
94/90 must be applied in such a way as to give effect to the
clear intention of the parties to the Treaty on European Union.
Moreover, if the authorship rule were not interpreted in the
way suggested by the applicant, it would contravene the principle
of proportionality, by virtue of which the measures adopted must
be necessary to achieve the objective of protecting confidentiality
and the public interest.
52 The Commission submits that the applicant's argument is contradicted
by the clear wording of the authorship rule. It states that it
cannot give access to documents of the governments of non-member
countries simply on the ground that it is in possession of those
documents. The decision whether or not to disclose documents
drawn up by third parties is a matter exclusively for those parties,
since they are the only ones able to decide whether or not they
wish to conduct a policy of transparency.
Findings of the Court of First Instance
53 It should be pointed out that the authorship rule may be applied
by the Commission when handling a request for access so long
as there is no higher rule of law prohibiting it from excluding
from the scope of the Code of Conduct documents of which it is
not the author. The fact that Decision 94/90 refers to declarations
of general policy, namely Declaration No 17 and the conclusions
of several European Councils does nothing to alter that finding,
since those declarations do not have the force of a higher rule
of law (Interporc, paragraphs 66, 73 and 74).
54 It follows that the Commission made a correct assessment in
holding that it was not required to give access to documents
that had been sent to it by the Government of Bangladesh. Therefore,
the first plea must be rejected in so far as it concerns correspondence
sent by that government to the Commission.
Decisions of the Commission concerning the mission reports
- Arguments of the parties
55 The applicant challenges the Commission's assertion that no
decisions exist in relation to the mission reports. It observes
in particular that, following the mission report of November-December
1996, several Member States initiated actions for post-clearance
recovery of customs duties, which must have resulted from a decision
of the Commission adopting the report's recommendations. The
applicant further emphasises that it appears from page 2 of Appendix
5 to the mission report of November-December 1996 that three
meetings took place at the Commission between officers of that
institution and representatives of the Member States to discuss
the report.
56 The Commission notes that the applicant has systematically
defined the documents requested as Commission `Decisions'. The
Commission therefore understood the request to relate to decisions
within the meaning of Article 189 of the EC Treaty (now Article
249 EC). No decision of that type was adopted in respect of the
mission reports.
57 In its reply, the applicant maintains that the Commission
admits by the statements in its defence that a document exists.
The applicant assumes that the document in question is the Commission's
decision on the mission report of November-December 1996. It
reiterates that, if the Commission had not taken any decision,
no post-clearance recovery action would have been undertaken
by the Member States. The applicant submits that, by raising
the question whether the measure in question constituted a decision
within the meaning of Article 189 of the Treaty, the Commission
avoids justifying its refusal to disclose the minutes of its
decision requesting Member States to take the necessary measures.
- Findings of the Court of First Instance
58 The Court finds that the applicant has not produced relevant
or consistent evidence to support its assertion that there are
one or more decisions in existence taken by the Commission in
respect of the mission reports. The fact that meetings took place
between Commission officials and representatives of the Member
States on the subject of those reports and of the national actions
for post-clearance recovery of customs duties does not necessarily
show that any decision had been taken by the Commission in addition
to its recommendations at the end of the mission reports. Nor
has the applicant produced evidence to refute the Commission's
assertion that the authorities of the Member States may, or must,
initiate post-clearance recovery procedures following the recommendations
contained in the mission reports, without a decision of the Commission
being necessary or, indeed, possible.
59 It follows that the first plea in law must be dismissed in
so far as it concerns the alleged decisions of the Commission
concerning the mission reports.
60 It follows from all of the foregoing considerations that the
contested decision must be annulled in so far as it relates to
the mission reports and correspondence from the Commission to
the Government of Bangladesh, and that the remainder of the first
plea in law must be dismissed.
The second plea, alleging infringement of Article 190 of the
Treaty
- Arguments of the parties
61 The applicant argues that insufficient reasons were stated
for the contested decision. The Commission did not examine in
respect of each document requested whether disclosure was in
fact likely to undermine one of the interests protected.
62 The Commission contends that the reasoning of the contested
decision is exhaustive. As regards the mission reports and correspondence
from the Commission to the Bangladesh Government, the decision
clearly shows that those documents belong to the category concerning
inspections and investigations and are therefore covered by the
public-interest exception. The decision also sets out the reasons
for which public disclosure of those documents could harm the
public interest. The Commission stresses that it did not satisfy
itself simply by concluding that the documents fell within the
public-interest exception. The reasoning of the contested decision
indicates not only why the category of documents concerned fell
within the ambit of the exception but also why in practice their
public disclosure would harm the public interest.
Findings of the Court of First Instance
63 It is settled case-law that the duty to give reasons for individual
decisions has the dual purpose of, first, allowing interested
parties to know the reasons justifying the measure so as to enable
them to protect their rights and, secondly, to enable the Community
judicature to exercise its power to review the legality of the
decision (Case C-350/88 Delacre and Others v Commission [1990]
ECR I-395, paragraph 15; Case T-105/95 WWF UK v Commission [1997]
ECR II-313, paragraph 66). Whether a statement of reasons satisfies
those requirements is a question to be assessed by reference
not only to its wording but also to its context and the whole
body of legal rules governing the matter in question (Case C-122/94
Commission v Council [1996] ECR I-881, paragraph 29; Kuijer,
paragraph 36).
64 It is also clear from the case-law that the Commission is
obliged to consider, in the case of each document to which access
is sought, whether, in the light of the information available
to the Commission, disclosure is in fact likely to undermine
one of the aspects of the public interest protected by the exceptions
(Case T-174/95 Svenska Journalistförbundet v Council [1998]
ECR II-2289, paragraph 112; Kuijer, paragraph 37).
65 The Commission must therefore make clear in the grounds stated
for its decision that it has carried out an assessment of the
documents at issue in the particular case (Kuijer, paragraph
38). In this case, as the Court has already found above in relation
to the mission reports and the correspondence from the Commission
to the Government of Bangladesh (paragraph 46), that such an
assessment does not appear in the contested decision. On the
contrary, the Commission based its reasoning exclusively on the
general characteristics of the categories of documents requested.
66 The second plea is therefore well founded in so far as it
concerns the mission reports (`Category 1') and the correspondence
from the Commission to the Government of Bangladesh (`Category
4', part).
67 However, the reasons stated in the contested decision are
sufficient as regards the other documents referred to in the
applicant's request. As regards the correspondence from the Government
of Bangladesh to the Commission, the latter has cited the authorship
rule and indicated to the applicant that it was for it to request
copies of the documents in question from the Bangladesh authorities.
The applicant was therefore in a position to know the reasons
for the contested decision and the Court of First Instance to
exercise its power of review of the legality of that decision.
The applicant therefore has no grounds for maintaining that a
more specific statement of reasons was necessary (Interporc,
paragraph 78). Similarly, as regards the alleged decisions concerning
the mission reports, it must be held that the Commission was
entitled to limit itself to indicating that such documents did
not exist, without being under any obligation to specify why
such decisions had not been taken.
68 It follows from all the foregoing considerations that the
contested decision must be annulled in so far as it refuses access
to the mission reports of the European Union from 1993 to 1996
concerning Bangladesh, including their annexes, and to the correspondence
from the Commission to the Government of Bangladesh concerning
the annulment of the GSP Forms A, and that the remainder of the
application must be dismissed.
Costs
69 Under Article 87(3) of the Rules of Procedure of the Court
of First Instance, where each party succeeds on some and fails
on other heads, the Court may order that the costs be shared
or that each party bear its own costs. In this case, the Court
decides that, on a fair assessment of the circumstances, the
Commission must bear its own costs and pay one half of those
incurred by the applicant, which must therefore bear one half
of its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE
(Fourth Chamber),
hereby:
1. Annuls the Commission decision of 11 March 1999 in so far
as it refuses the applicant access to the mission reports of
the European Union from 1993 to 1996 concerning Bangladesh, including
their annexes, and to the correspondence sent by the Commission
to the Government of Bangladesh concerning the annulment of the
certificates of origin under the generalised system of preferences;
2. Dismisses the remainder of the action;
3. Orders the applicant to bear one half of its own costs;
4. Orders the Commission to bear its own costs, and to pay one
half of the costs incurred by the applicant. |
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