Case T-436/09
Julien Dufour
v
European Central Bank
(Access to documents – Decision 2004/258/EC – ECB databases used in the preparation of staff recruitment and mobility reports – Refusal of access – Action for annulment – Interest in bringing proceedings – Admissibility – Meaning of ‘document’ – Actions for damages – Premature)
Summary of the Judgment
1.Actions for annulment – Interest in bringing proceedings – Natural or legal persons – Action capable of securing a benefit for the applicant
(Art. 263, fourth para., TFEU)
2.European Union – Institutions – Right of public access to documents – Decision 2004/258 of the European Central Bank
3.Actions for annulment – Jurisdiction of the EU judicature – Claim seeking that directions be issued to an institution – Access to documents – Inadmissibility
(Art. 263, fourth para., TFEU)
4.Acts of the institutions – Statement of reasons – Obligation – Scope – Decision of the European Central Bank refusing to grant the applicant access to some of its databases because they are not documentary in nature
(Art. 296, second para., TFEU; Decision 2004/258 of the European Central Bank, Arts 7(1), 8(1) and 9)
5.Acts of the institutions – Statement of reasons – Obligation – Scope
(Art. 296, second para., TFEU)
6.Approximation of laws – Legal protection of databases – Directive 96/9 – Meaning of ‘database’
(European Parliament and Council Directive 96/9, Art. 1(2))
7.European Union – Institutions – Right of public access to documents – Decision 2004/258 of the European Central Bank – Meaning of ‘document’
(Decision 2004/258 of the European Central Bank, Art. 3(a))
8.European Union – Institutions – Right of public access to documents – Request imposing an excessive workload – Weighing-up of the interests
(Decision 2004/258 of the European Central Bank, Art. 3(a))
9.European Union – Institutions – Right of public access to documents – Decision 2004/258 of the European Central Bank – Meaning of ‘document’
(Decision 2004/258 of the European Central Bank, Art. 3(a))
10.European Union – Institutions – Right of public access to documents – Decision 2004/258 of the European Central Bank – Obligation on the European Central Bank to carry out a normal or routine search for documents – Scope
(Decision 2004/258 of the European Central Bank, Arts 2(1), 3(a), 4(5) and (6), and 6(1) to (3))
11.European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Obligation to create a register of documents – Listing of a database in a register
(European Parliament and Council Regulation No 1049/2001, Art. 11; Decision 2004/258 of the European Central Bank, Art. 3(a))
12.Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – One of those conditions lacking – Claim for compensation dismissed in its entirety
(Arts 107(2) EC and 288, second and third paras, EC; Art. 1, third para., third sentence, TEU)
13.Procedure – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based
(Rules of Procedure of the General Court, Art. 44(1)(c))
1.An action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. In order for such an interest to be present, the annulment of the contested measure must of itself be capable of having legal consequences and the action must be likely, if successful, to procure an advantage for the party who has brought it. That is true of an action for annulment brought by a natural person against the refusal of the European Central Bank to grant it access to data contained in a database, pursuant to Article 6(2) of Decision 2004/258 on public access to European Central Bank documents, and founded on the view, which the applicant disputes, that Decision 2004/258 does not apply in the case of access to databases or to the data which they contain.
(see paras 28, 36)
2.In a case relating to an application for access to European Central Bank (ECB) documents, it is apparent from Article 6(2) of Decision 2004/258 on public access to European Central Bank documents, in particular the use of the verbs ‘ask’ and ‘assist’, that the Bank may not at the outset reject an application for access on the ground that the document to which it refers does not exist. On the contrary, it must in such a case ask the applicant to clarify his request, pursuant to Article6(2) of that decision, and assist him to that end, in particular by indicating to him the documents which it does hold that are similar to those referred to in the application for access or which are likely to contain some or all of the information which he seeks.
(see paras 30-31)
3.The Court is not entitled, when exercising judicial review of legality, to issue directions to the institutions or to assume the role assigned to them. That limitation of the scope of judicial review applies to all types of contentious matters that might be brought before it, including those concerning access to documents.
(see para. 39)
4.The statement of reasons must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the Courts of the European Union to exercise their power of review. The extent of the statement of reasons required depends on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether it meets the requirements must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.
It follows that an institution complies with that obligation where it states that the applicant’s request for access to its databases was refused on the ground that, for numerous reasons relating to the fact that printed versions of the contents of the databases do not exist and that to compile such printed versions would impose an excessive burden of work, its request did not relate to a document within the meaning of the relevant provisions. Such a statement of reasons enables the applicant to understand the justification for the refusal of his request for access and to challenge that refusal before the Courts of the European Union.
(see paras 47-51)
5.The obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of a measure. Indeed, the fact that a statement of reasons is incorrect does not mean that it does not exist.
(see para. 52)
6.The term ‘database’, as defined in Article 1(2) of Directive 96/9 on the legal protection of databases, refers to any collection of works, data or other materials, separable one from another without the value of their contents being affected, that includes a method or system of some sort for the retrieval of each of its constituent materials. The characteristics of a database include, first, the existence of content of some kind or other (informative, literary, artistic, musical or other) and, secondly, the existence of a fixed medium of some kind or other in which that content may be stored.
The elements which comprise such a database, that is to say, the data items, are independent one from another. They are not, as a general rule, presented in any fixed, immutable order, but may be presented in a multitude of different combinations, using the technical and other means available.
(see paras 87, 102, 107)
7.So far as concerns the term ‘document’, appearing in Article3(a) of Decision 2004/258 on public access to European Central Bank documents, the expressions ‘medium’, ‘stored’, ‘recording’, ‘drawn up’ and ‘held’ used in that definition indicate, implicitly but clearly, that what was contemplated was content that is saved and that may be copied or consulted after it has been generated. Material that is not saved does not, therefore, constitute a document, even if the Bank has knowledge of it.
Secondly, it is clear from Article 3(a) of Decision 2004/258 that the nature of the storage medium on which content is saved is irrelevant to the question whether that content does or does not constitute a document. It can therefore be either a traditional type of medium, such as paper, or a more sophisticated type of medium, such as the various electronic storage devices (hard disk, electronic memory-chip, and so on) or the various media used for sound, visual or audiovisual recordings (CDs, DVDs, video cassettes, and so on).
Thirdly, the wording of that provision refers to ‘any content’. In other words, the type and nature of the content stored are equally irrelevant. Thus, a document within the meaning of the definition given in that decision may contain words, figures or any other kind of symbol, but also images and sound recordings, such as the words of a speaker, or visual recordings, such as films. The only restriction on the content that falls within the definition set out in Article 3(a) of Decision 2004/258 is the condition that it must relate to the Bank’s policies, activities or decisions.
Fourthly, within the meaning of that provision, the length, volume or presentation of the content have no bearing on the question whether or not it falls within the abovementioned definition. It follows that a document within the meaning of Decision 2004/258 may be a book of several hundred pages or a ‘piece of paper’ containing a single word or figure, such as a name or telephone number. Similarly, a document may consist not only of text, as in the case of a letter or memorandum, but also a picture, catalogue or list, such as a telephone directory, a price list or a list of spare parts. Even content of minuscule proportions, such as a single word or figure, is, if it is stored, sufficient to constitute a document.
Accepting that an item of data, taken individually, is not ‘content’ of sufficient substance or nature to constitute a document within the meaning of Decision 2004/258 or Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents fails, by contrast, to take account of the fact that the significance of a data item contained in a database does not reside merely in its size, which may be very small, but also in the multiple relationships, direct and indirect, which it has with other data items contained in the same database. Indeed, it is precisely those relationships that enable the content of a database to be ‘systematically or methodically arranged’. Thus, even a small number of data items extracted from a database can convey useful information, whether one information item or several, whereas, as a general rule, a morsel of text taken out of context will lose its meaning. Consequently, it cannot be found that the data contained within a database, taken as a whole, are no more than a meaningless mass. Those data are stored, not haphazardly or without order, but in accordance with a precise classification system, which, by its complexity, makes the creation of multiple relationships between the data items possible.
It follows that, in accordance with a literal interpretation of the definition of the term ‘document’ appearing in Article3(a) of Decision 2004/258, the entirety of the data contained in a database constitutes a document within the meaning of that provision.
(see paras 88-94, 106, 108, 110-111, 116, 164)
8.The possibility that a database may contain a very large amount of data overall is not a cogent reason for denying that those data constitute a document within the meaning of Article 3(a) of Decision 2004/258 on public access to European Central Bank documents.
Indeed, while an institution must retain the right to balance the interest in public access to the documents against the burden of work so caused, in order to safeguard, in those particular cases, the interests of good administration, that possibility remains applicable only in exceptional cases however, particularly in view of the fact that it is not, in principle, appropriate that account should be taken of the amount of work entailed by the exercise of the applicant’s right of access and its interest in order to vary the scope of that right. In addition, in so far as the right of access to documents held by the institutions constitutes an approach to be adopted in principle, it is with the institution relying on an exception related to the unreasonableness of the task entailed by the request that the burden of proof as to the scale of that task rests.
(see paras 121, 122, 124)
9.In order for it to be stored in a medium, content must exhibit a certain degree of stability. Content that is only present on a technical device only momentarily does not fulfil that condition. Once content has been stored by the European Central Bank in an appropriate medium, it constitutes a document within the meaning of Article 3(a) of Decision 2004/258 on public access to European Central Bank documents and one which may be the subject of an application for access. The fact that such content may subsequently be altered is in that regard irrelevant. By contrast, an application for access cannot refer to future content or to content that has not yet been recorded; nor may it relate to content which, although once recorded, has been deleted by the time the application is made. Likewise, it must be held that content which is stored by an external service provider on behalf of the Bank in such a way as to be available to the Bank at any time is held by the Bank for the purposes of that provision.
(see paras 126-128, 131)
10.The potentially sensitive or confidential nature of certain data contained in a European Central Bank database cannot provide sufficient reason for refusing to acknowledge that the content of such a database constitutes a document within the meaning of Article 3(a) of Decision 2004/258 on public access to European Central Bank documents.
Moreover, the Bank may confine a refusal to grant access exclusively to information covered by the exceptions provided for in Article 4(6) of Decision 2004/258. It must consequently grant partial access if the aim pursued in refusing access to a document may be achieved where all that is required of the institution is to blank out the passages or data which might harm the public interest to be protected.
An application designed to have the ECB search its databases and to communicate the results thereof should be seen within the same context since it is, in essence, an application for partial access to a document.
Since Article 4(5) of Decision 2004/258 contemplates partial access as a solution to be adopted where it is impossible wholly to satisfy a request for access, the persons concerned, who have a right of access, in principle, to ECB documents in their entirety, may, a fortiori, request only partial access to such documents. Such an application must identify in a sufficiently precise manner not only the document, within the meaning of Article 3(a) of the decision, which is the subject of the application, but also the part of the document to which access is sought.
In the event of an application for access designed to have the ECB carry out a search of one or other of its databases using search criteria specified by the applicant, the ECB is obliged, subject to the possible application of Article 4 of Decision 2004/258, to accede to that request, if the search called for can be carried out using the search tools available for the database in question. It is not permissible, however, to compel the ECB, by means of an application for access to documents formulated on the basis of Decision 2004/258, to communicate to the applicant part or all of the data contained in one or other of its databases organised according to a classification scheme that is not supported by that database. Such an application would in fact require the creation of a new ‘document’ and would for that reason not come within the parameters of the decision.
It follows that, in the context of an application for partial access to a document, anything that can be extracted from a database by means of a normal or routine search may be the subject of an application for access made pursuant to Decision 2004/258.
(see paras 138, 144, 146-148, 150, 152-153)
11.Unlike Regulation No1049/2001 regarding public access to European Parliament, Council and Commission documents, Decision 2004/258 on public access to European Central Bank documents makes no provision for the ECB to create a register of documents. The obligation to create a register laid down in Article 11 of that regulation is intended to make citizens’ rights under that regulation effective. It is therefore questionable whether the difficulty, or even the impossibility, of setting out material in such a register can constitute sufficient reason for concluding that that material is not a document within the meaning of Article3(a) of Decision 2004/258.
In any event, listing a database in such a register, along with the references provided for in Article 11(2) of Regulation No1049/2001, would not appear to pose any particular difficulties. Article 11 in no way requires such a listing to be adapted every time data are added to or deleted from a database. At most, such adaptation would be necessary only if the content of the database were significantly altered. Moreover, a listing of the database in the register could be updated at reasonable intervals, in order to reflect, as extensively as possible, the current content of the database.
(see paras 155-156)
12.In order for the European Union to incur non‑contractual liability within the meaning of the second paragraph of Article288EC by reason of the unlawful conduct of its institutions, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage in question.
As regards the first of those conditions, there must be a sufficiently serious breach of a rule of law intended to confer rights on individuals. As regards the requirement that the breach must be sufficiently serious, the decisive test for determining whether that requirement is met is whether the Community institution concerned has manifestly and gravely disregarded the limits on its discretion. Where that institution has only a considerably reduced or even no discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach.
As regards the condition concerning the causal link, the European Union may be held responsible only for damage which is a sufficiently direct consequence of the misconduct of the institution concerned. As regards the damage suffered, it must be actual and certain and quantifiable. By contrast, purely hypothetical and indeterminate damage does not give rise to compensation. It is for the applicant to produce to the Court the evidence to establish the existence and the extent of the damage suffered. Moreover, where one of the conditions is not satisfied, the application must be dismissed in its entirety without it being necessary to examine the other preconditions.
In that context, the applicant’s claim for compensation, based on the submission of his doctoral thesis being delayed because of the refusal of a European Union institution to grant him access to certain documents, is premature since that delay was due to other factors in addition to that refusal.
(see paras 189-193, 197)
13.According to Article 44(1)(c) of the Court’s Rules of Procedure, applications must state the subject-matter of the action and give a summary of the pleas advanced. An application seeking compensation for damage caused by a Community institution must, in order to satisfy those requirements, state the evidence on which, in particular, the damage claimed to have been suffered may be identified as well as the nature and extent of that damage.
(see para. 194)