(Access to documents— Regulation (EC) No1049/2001— Request for access to the observations of the Commission and a detailed opinion of a Member State in the context of a notification procedure under Directive (EU) 2015/1535

ORDER OF THE GENERAL COURT (Fourth Chamber)

19July 2018(*)

(Access to documents— Regulation (EC) No1049/2001— Request for access to the observations of the Commission and a detailed opinion of a Member State in the context of a notification procedure under Directive (EU) 2015/1535— Refusal to grant access— Disclosure after commencement of the action— Action which has become devoid of purpose— No need to adjudicate)

In Case T‑750/17,

Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych, established in Warsaw (Poland), represented by P.Hoffman, lawyer,

applicant,

v

European Commission, represented by C.Ehrbar and M.Konstantinidis, acting as Agents,

defendant,

APPLICATION pursuant to Article263 TFEU seeking the annulment of European Commission Decision C(2017) 6020 final of 29August 2017, rejecting the confirmatory application of the applicant for access to the Commission’s comments and the detailed opinion of the Republic of Malta issued in the framework of notification procedure 2016/398/PL, pursuant to Directive (EU) 2015/1535 of the European Parliament and of the Council of 9September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L241, p.1),

THE GENERAL COURT (Fourth Chamber),

composed of H.Kanninen, President, L.Calvo-Sotelo Ibáñez-Martín and I.Reine (Rapporteur), Judges,

Registrar: E.Coulon,

makes the following

Order

Background to the dispute

1On 29July 2016, Poland notified the Commission about a planned amendment of the Law on games of chance in accordance with Article5 of Directive (EU) 2015/1535 of the European Parliament and the Council of 9September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L241, p.1).This notification was registered under number 2016/398/PL.

2On 18October 2016, in the framework of the above notification procedure, the Commission issued comments within the meaning of Article5(2) of Directive 2015/1535 and, on 28October 2016, the Republic of Malta issued a detailed opinion within the meaning of Article6(2) thereof.

3On 9May 2017, the applicant Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych (Commercial Chamber of Manufacturers and Operators of Entertainment Devices), an organisation representing the interests of manufacturers, distributors and operators of entertainment devices in Poland, requested access to the Commission’s comments and the detailed opinion of the Republic of Malta (‘the two requested documents’), on the basis of the provisions of Regulation (EC) No1049/2001 of the European Parliament and of the Council of 30May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L145, p.43).

4 On 8June 2017, the Commission issued a decision in which it refused access to the two requested documents based on Article4(2), third indent, of Regulation (EC) No1049/2001 relating to the purpose of inspections, investigations and audits on the ground that those documents were directly linked to pending infringement procedure and to an investigation by the Commission concerning the compatibility with Article56 TFEU of the Polish Law on games of chance.

5On 29June 2017, the applicant sent the Commission a confirmatory application for access to the two requested documents under Article7(2) of Regulation No1049/2001.

6By Decision C(2017) 6020 final of 29August 2017 (‘the contested decision’), the Commission issued a decision rejecting the confirmatory application.

Procedure and forms of order sought

7By application lodged at the Registry of the General Court on 10November 2017, the applicant brought the present action.

8The applicant claims that the Court should:

–annul the contested decision;

–order the Commission to pay the costs.

9By document lodged at the Registry of the General Court on 2February 2018, the Commission requested the General Court to declare that the action for annulment has become devoid of purpose and that there was no longer any need to adjudicate on it. It informed the General Court that, on 7 December 2017, it had decided to close the infringement procedure 2013/4218 and that, by a new Decision C(2018) 678 final of 31January 2018, it had granted the applicant access to the two requested documents. In that connection, it stated that, after the closure of the infringement procedure, it no longer had any need to protect an on-going investigation. It also requested the General Court to order the applicant to pay the costs.

10In its observations lodged on 23February 2018 on the application for a declaration that there is no need to adjudicate on the action lodged by the Commission, the applicant agreed with that request and asked the General Court to order the Commission to pay the costs.

11By document lodged at the Registry of the Court on 8March 2018, the Republic of Poland applied for leave to intervene in support of the form of order sought by the Commission.

Law

12Under Article130(2) and (7) of its Rules of Procedure, if a party so requests, the General Court may declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.

13Since, in the present case, the Commission has requested a declaration that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, the General Court, considering that it has sufficient evidence available to it in the case file, has decided to adjudicate on the Commission’s application without taking further steps in the proceedings.

14According to settled case-law, the subject matter of the dispute must continue, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage on the party bringing it (judgments of 7June 2007, Wunenburger v Commission, C‑362/05P, EU:C:2007:322, paragraph42, and 9September 2011, LPN v Commission, T‑29/08, EU:T:2011:448, paragraph56; see, also, order of 5July 2017, EEB v Commission, T‑38/16, not published, EU:T:2017:523, paragraphs33 and the case-law cited).

15In the present case, it must be recalled that the action is brought against the contested decision, by which the Commission refused the applicant access to the two requested documents. Subsequent to the lodging of the application, without formally withdrawing the contested decision, the Commission adopted a new decision, by which it granted the applicant access to those documents, which satisfied its claim in full. It must be observed that the applicant obtained the only advantage its action could provide. The annulment of the contested decision, in so far as it refused the applicant access to those documents, would not have any additional effects in relation to the disclosure of that document in its entirety (see, to that effect, order of 14January 2014, Miettinen v Council, T‑303/13, not published, EU:T:2014:48, paragraph19).

16In those circumstances, it must be held, as the parties agree, that the present action has become devoid of purpose and, therefore, there is thus no longer any need to adjudicate (see, to that effect, judgment of 9September 2011, LPN v Commission, T‑29/08, EU:T:2011:448, paragraph57, and order of 15January 2018, ArcelorMittal Belval & Differdange and ThyssenKrupp Steel Europe v ECHA, T‑762/16, not published, EU:T:2018:12, paragraph17).

17It follows from the foregoing that there is no longer any need to adjudicate on the present action or, therefore, on the request for leave to intervene by the Republic of Poland.

Costs

18Under Article137 of the Rules of Procedure, where a case does not proceed to judgment, the costs shall be in the discretion of the General Court.

19The General Court considers that it would be a fair assessment of the case to order each party to bear its own costs.

20Furthermore, pursuant to Article144(10) of the Rules of Procedure, the Republic of Poland is ordered to bear its own costs related to the application for leave to intervene.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby orders:

1.There is no longer any need to adjudicate on the application.

2.There is no longer any need to adjudicate on the Republic of Poland’s application for leave to intervene.

3.Each party is to bear its own costs.

4.The Republic of Poland is to bear its own costs relating to the application for leave to intervene.

Luxembourg, 19July 2018.

*Language of the case: English.