(Actions for annulment— Access to documents— Regulation (EC) No1049/2001

ORDER OF THE GENERAL COURT (Fourth Chamber)

13November 2012 (*)

(Actions for annulment— Access to documents— Regulation (EC) No1049/2001— Implied refusal of access— Period allowed for commencing proceedings— Delay— Manifest inadmissibility)

In Case T‑278/11,

ClientEarth, established in London (United Kingdom),

Friends of the Earth Europe, established in Amsterdam (Netherlands),

Stichting FERN, established in Leiden (Netherlands),

Stichting Corporate Europe Observatory, established in Amsterdam,

represented by P.Kirch, lawyer,

applicants,

v

European Commission, represented by K.Herrmann and C.ten Dam, acting as Agents,

defendant,

APPLICATION for annulment of the Commission’s implied decision of 22April 2011 refusing access to certain documents relating to the voluntary certification schemes for seeking recognition from the Commission under Article18 of Directive 2009/28/EC of the European Parliament and of the Council of 23April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L140, p.16),

THE GENERAL COURT (Fourth Chamber),

composed of I.Pelikánová, President, K.Jürimäe (Rapporteur) and M.van der Woude, Judges,

Registrar: E.Coulon,

makes the following

Order

Legal context

1Under Article8 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), concerning the processing of confirmatory applications:

‘1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles [263 TFEU] and [228 TFEU], respectively.

2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

3. Failure by the institution to reply within the prescribed time-limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the [FEU] Treaty.’

Background to the dispute

2The applicants, ClientEarth, Friends of the Earth Europe, Stichting FERN and Stichting Corporate Europe Observatory, are non-governmental organisations active, in particular, in the field of environmental protection.

3By letter of 22October 2010, sent via electronic mail, the applicants submitted to the European Commission, under Article7(1) of Regulation No1049/2001, an application for access to several documents relating to the voluntary certification schemes for seeking recognition from the Commission under Article18 of Directive 2009/28/EC of the European Parliament and of the Council of 23April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L140, p.16) (the ‘initial application’).

4By electronic mail of 12November 2010, the Commission informed the applicants that the initial application of 22October 2010 had been registered and that the period for a reply to that application had been extended by 15 working days.

5By letter of 7December 2010, sent by electronic mail, the Commission replied to the initial application by disclosing one document and refusing access to the other documents covered by the initial application.

6By letter of 15December 2010, sent by electronic mail, the applicants submitted a confirmatory application to the Secretary-General of the Commission, pursuant to Article7(2) of Regulation No1049/2001 (‘the confirmatory application’).

7By letter of 12January 2011, sent by electronic mail, the Commission informed the applicants of the registration of the confirmatory application on 15December 2010 and of the extension by 15 days, under Article8(2) of Regulation No1049/2010, of the prescribed period for a reply, that is, until 4February 2011. As reasons for that extension, the Commission cited the large number of documents to which access was requested, the technical nature of the data contained in them, and the need to re-consult third parties.

8By letter of 3February 2011, sent by electronic mail, the Commission informed the applicants that it was unable to provide a final reply within the extended period expiring on 4February 2011, on the ground that the required analysis of the documents and consultations with the services concerned within the Commission had taken more time than the usual. It added that it aimed to send such a reply within the shortest possible time-limit.

9By electronic mail sent to the Secretary-General of the Commission on 23February 2011, the applicants expressed their concern regarding the lack of a reply from the Commission to the confirmatory application, and invited the Commission to provide them with an exact date for its reply.

10By letter of 28February 2011, sent by electronic mail, the Commission informed the applicants that the confirmatory application was being dealt with and that it would do its utmost to provide a final reply by the end of March 2011.

11By letter of 7April 2011, sent by electronic mail, the applicants pointed out to the Commission that they had still not received a final reply to the confirmatory application and they invited the Commission to provide access to the documents requested within a period of 10 working days from 7April 2011, adding that, unless that reply was received before 22April 2011, they would bring an action before the General Court challenging the implied decision refusing their confirmatory application.

12By letter of 14April 2011, sent by electronic mail, the Commission informed the applicants that, because of new developments in the case at stake and the closure of the Commission’s offices ‘for Easter from 21 to 25 April [2011]’, it would not be in a position to provide a final reply to the confirmatory application before 22April 2011, but that the applicants could expect to receive a reply shortly after that date.

13By letter of 18April 2011, sent by electronic mail, the applicants indicated to the Commission that the intervention of the Easter holidays was immaterial, given that the confirmatory application had been submitted and registered on 15December 2010, and that 83 working days had transpired since that application was made, that is, 68 working days beyond the maximum period provided to process a confirmatory application and 53 working days beyond any potentially lawful extension of that period under the terms of Regulation No1049/2001.

14By decision of 19September 2011, the Commission adopted an express decision in response to the confirmatory application of 15December 2010, which related to some of the documents requested (‘the first express decision’).

Procedure

15By document lodged at the Registry of the General Court on 25May 2011, the applicants brought the present action against the implied decision refusing their confirmatory application which was made, it is claimed, on 22April 2011 (‘the contested decision’).

16On 2April 2012, the decision of the General Court to open the oral procedure and to fix a date for a hearing on 5June 2012 was notified to the parties.

17By letter of 17April 2012, the Commission informed the General Court that, by letter of 3February 2012 (‘the second express decision’), received by the applicants by registered post on 8February 2012, it had adopted a second express decision with regard to the documents requested which had not been dealt with by the first express decision. According to that letter, the Commission formally contends that the applicants no longer have any legal interest in bringing proceedings, so that there is no need to adjudicate in the present case, and alleges, moreover, that the action against the contested decision is manifestly inadmissible. That action, it is contended, was brought after the expiry of the period allowed for bringing an action for annulment. The contested decision, as it is an implied decision, was made upon the expiry of the prescribed period referred to in Article8(3) of Regulation No1049/2001, that is, on 4February 2011.

18By letter of 4May 2012, the applicants, at the request of the Court, submitted their observations with regard to the Commission’s application for a declaration that there is no need to adjudicate.

19By letter of 29June 2012, the applicants, at the request of the Court, submitted their observations with regard to the Commission’s incidental plea of inadmissibility in its letter of 17April 2012, on the ground that the action was brought out of time.

Forms of order sought

20The applicants claimed initially that the Court should:

–declare that the Commission infringed, in particular, Article4(2), (3) and (6) of Regulation No1049/2001, and Article8(1) and (2) of that regulation;

–declare that the Commission infringed Article4(1) to (4) of the Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters, signed on 25June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17February 2005 (OJ 2005 L124, p.1) (‘the Aarhus Convention’);

–declare that the Commission infringed Article6(1) of Regulation (EC) No1367/2006 of the European Parliament and of the Council of 6September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L264, p.13);

–annul the implied decision refusing access to the requested documents;

–grant injunctive relief as provided for by Article9(4) of the Aarhus Convention, ordering the Commission to provide, within a set timeframe, access to all requested documents, unless protected under an absolute exception in Article4(1) of Regulation No1049/2001;

–order the Commission to pay the costs, including those of any intervening party.

21The Commission initially contended that the Court should:

–dismiss the application as inadmissible in so far as it concerns the 63 documents to which access has been given by the decision of 19September 2011;

–make an appropriate order as to costs.

22In its letter of 17April 2012, the Commission contended that the Court should:

–dismiss the application as devoid of purpose;

–in the alternative, dismiss the application as manifestly inadmissible.

23In the letter of 4May 2012, the applicants claimed that the Court should:

–declare, in light of the Commission’s egregious procedural delays— in manifest defiance of EU rules on access to documents and transparency— that there is no longer any practical interest for the applicants in a ruling, and thus that there is no longer any effective need to adjudicate in the present case;

–order the Commission to pay the costs pursuant to Article87 of the Rules of Procedure of the General Court.

Law

24Under Article111 of the Rules of Procedure, where the action is manifestly inadmissible, the General Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action. Furthermore, under Article113 of those Rules, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding. In the present case, the General Court considers that it has sufficient information from the documents before it and from the explanations provided by the parties during the written and oral procedure, and finds that there is no need to take any further steps in the proceedings.

25In the letter of 17April 2012, lodged with the Court as an application for a decision that there is no need to adjudicate on the action, the Commission contends, first, that following the second express decision, notified to the applicants on 8February 2012, as those applicants did not bring an action for annulment against that decision within the prescribed time-limit and did not amend their application with regard to that decision, they lost their interest in bringing proceedings against the contested decision, so that the Court should find that there is no need to adjudicate in the present case.

26Secondly, without raising an objection of inadmissibility by separate document, within the meaning of Article114(1) of the Rules of Procedure, the Commission submits, in the alternative, a plea of manifest inadmissibility of the action in that it was brought after the expiry of the period within which the applicants can challenge the legality of the contested decision. In that regard, the Commission contends that that period expired on 14April 2011.

27In their observations on the Commission’s application for a decision that there is no need to adjudicate on the action, as set out in their letter of 4May 2012, the applicants argue, first, that the action is brought against an implied decision of the Commission set at the date of 22April 2011, based on exchanges of correspondence with the Commission between 14 and 18April 2011. Secondly, they deny that the second express decision was notified to them on 8February 2012. Only one of the applicants received that notification. Thirdly, in essence, they acknowledge that they no longer have any interest in obtaining access to the documents that they had requested and that the Commission had refused to grant them in the second express decision. Fourthly, the applicants argue that the Commission is wrong to contend that the time-limit for bringing an action for annulment against the second express decision had expired. In any event, it is claimed, they are entitled to amend the claims and pleas in law set out in the application in this case following the adoption of that second express decision. However, the applicants confirm that they acknowledge that they no longer have any practical interest in obtaining a judgment and, therefore, there is no longer any need to adjudicate in the present case.

28In their reply to the General Court’s measure of organisation concerning compliance with the time-limit for bringing an action in the present case, the applicants argue, in essence, that it is apparent from their exchange of correspondence with the Commission between 3 February and 18April 2011, and particularly the undertakings made and renewed on those occasions by the Commission to adopt an express decision as soon as possible, that they could legitimately believe that the implied decision was not made upon expiry of the prescribed time-limit on 4February 2011, but on a subsequent date which they set at 22April 2011.

Findings of the Court

29The Court decides, after hearing the parties, to examine of its own motion, notwithstanding the application for a decision that there is no need to adjudicate on the action, raised formally by the Commission in its letter of 17April 2012, the admissibility of the present action having regard to the period within which the applicants had to bring an action.

30First, the Court observes that, according to settled case-law, the time-limit for bringing actions is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and that it is for the European Union courts to ascertain, of their own motion, whether it has been complied with (Case C‑246/95 Coen [1997] ECR I‑403, paragraph21, and order of 4April 2008 in Case T‑503/07 Kulykovska-Pawlowski and Others v Parliament and Council, not published in the ECR, paragraph6).

31According to settled case-law the time-limits for bringing proceedings are at the discretion of neither the Court nor the parties (Case T‑514/93 Cobrecaf and Others v Commission [1995] ECR II‑621, paragraph40; Case T‑119/95 Hauer v Council and Commission [1998] ECR II‑2713, paragraph22; and Case T‑287/02 AIT v Commission [2003] ECR II‑2179, paragraph20).

32Secondly, the Court observes that, according to settled case-law, in principle, both the Court of Justice and the General Court refuse to accept— since to do so would call into question the system of remedies instituted by the FEU Treaty— that mere inaction on the part of an institution can be deemed to be equivalent to an implied decision, unless there are express provisions laying down a deadline after which an implied decision will be deemed to have been taken by the institution which has been asked to state its position and prescribing the content of that decision (Case C‑123/03P Commission v Greencore [2004] ECR I‑11647, paragraph45; Joined Cases T‑189/95, T‑39/96 and T‑123/96 SGA v Commission [1999] ECR II‑3587, paragraph27; and Case T‑437/05 Brink’s Security Luxembourg v Commission [2009] ECR II‑3233, paragraph55).

33Under Article8(3) of Regulation No1049/2001, failure by the institution to reply, within the prescribed time-limit, to a confirmatory application within the meaning of Article8(1) and (2) of that regulation, shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution in accordance with the provisions of the FEU Treaty.

34In the present case the parties agree, moreover, that the contested measure is an implied negative decision, within the meaning of the provisions of Article8(3) of Regulation No1049/2001. In that regard, the Court observes that, as is apparent from the documents in the file, on the date on which the action for annulment was brought, namely 25May 2011, the Commission had not replied to the applicants’ confirmatory application of 15December 2010 and that, on the basis of the provisions of Article8(3) of Regulation No1049/2001, the applicants sought, by lodging their application, to challenge the legality of what constituted a negative reply from the Commission.

35Thirdly, it should be noted that, according to the provisions of the sixth paragraph of Article263 TFEU, actions for annulment must be instituted within two months of the publication of the measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the applicant, as the case may be.

36With regard to the abovementioned provisions of the Treaty, it is appropriate, first, to determine the date on which the contested decision was legally made and, secondly, to calculate the period of time within which the applicants had to bring an action to challenge the legality of that decision.

37With regard to determining the date on which the contested decision was legally made, it should be noted that, as is apparent from recital 13 in the preamble to Regulation No1049/2001, in order to ensure that the right of access of the public to documents falling within the scope of that regulation is fully respected and, therefore, fully effective, the legislature has made provision for the two-stage administrative procedure, referred to, respectively, in Articles7 and 8 of that regulation, to be accompanied by the possibility of bringing court proceedings. That is specifically the case with implied negative decisions, within the meaning of Article8(3) of that regulation.

38It should be added that the reference, in the provisions of Article8(3) of Regulation No1049/2001, to the concept of prescribed time-limit, instead of a reference to a fixed period, is explained by the fact that, under the provisions of Article8(1) and (2) of that regulation, the duration of the processing period of a confirmatory application can vary between a minimum of 15 working days and a maximum of 30 working days from registration of the application. Consequently, the duration of the prescribed time-limit, within the meaning of Article8(3) of Regulation No1049/2001, must be calculated in each specific case, having regard to the course of the processing, by the institution concerned, of the confirmatory applications before it, in accordance with the provisions of Article8(1) and (2) of Regulation No1049/2001.

39In the present case, first, the Court notes that it is common ground between the parties that the time-limit within which the Commission had to reply to the confirmatory application, registered by the Commission services on 15December 2010, after extending it by 15 working days on the basis of the provisions of Article8(2) of Regulation No1049/2001, expired on 4February 2011. Having regard to the provisions of Regulation (EEC, Euratom) No1182/71 of the Council of 3June 1971 determining the rules applicable to periods, dates and time-limits (OJ, English Special Edition 1971 (II), p.354), to the schedule of public holidays for 2010 (OJ 2008 C166, p.18) and to that of public holidays for 2011 for European Community institutions (OJ 2009 C230, p.10), it must be held that that calculation of the time-limit for replying to the confirmatory application is not vitiated by any error. Consequently, the prescribed time-limit, within the meaning of Article8(3) of Regulation No1049/2001, expired in the present case on 4February 2011.

40It follows from all the considerations set out in paragraphs35 to 39 above that the contested decision, taking the form of an implied negative decision, was made on 4February 2011.

41With regard to the calculation of the period within which the applicants had to bring their action for annulment against the contested decision, the prescribed time-limit referred to in Article263 TFEU time began to run, in accordance with Article101(1) of the Rules of Procedure, on 5February 2011 and expired, in accordance with Article102(2) of the Rules of Procedure, on 14April 2011, that is, more than one month before the action was brought on 25May 2011.

42That finding cannot be altered in the light of the arguments of the applicants.

43It should be noted, first of all, that the Commission indeed expressly indicated, in the letter of 3February 2011, that it aimed to send a final reply to the confirmatory application within the shortest possible time-limit, and then, in the letter of 28February 2011, that it would do its utmost to provide such a reply by the end of March 2011 and, finally, in the letter of 14April 2011, that it intended to send such a reply shortly after 22April 2011. Having regard to the express undertakings made in writing by the Commission, the latter thus expressly indicated to the applicants that it intended to adopt, within a short period during the first six months of the year 2011, a final reply to the confirmatory application.

44The Court notes that, in their letter of 7April 2011, the applicants expressly indicated to the Commission that, in the absence of a final reply to their confirmatory application before 22April 2011, they would bring an action for annulment against the implied decision that was made, according to them, on that date.

45However, the Court finds that neither of the two circumstances referred to in paragraphs43 and 44 above could have the effect, as the applicants seem to have considered at the time and which they claimed both in their observations on the application for a declaration that there is no need to adjudicate and in their letter of 29June 2012, of postponing until 22April 2011 the date when the implied decision was made.

46As the Court observed at paragraph31 above, it is settled case-law that the time-limits for bringing proceedings are at the discretion of neither the Court nor the parties. In considering, as is apparent from the letters of 4 May and 29June 2012, having regard to the exchange of correspondence between the applicants and the Commission, that the implied negative decision, within the meaning of Article8(3) of Regulation No1049/2001, was made on 22April 2011, the applicants clearly intended to adjust the period allowed for bringing actions for annulment by postponing the date when the said decision was made and, consequently, the date from which the limitation period for bringing that action began to run, as well as that on which it expired.

47It follows from all the above considerations that the action must be rejected in its entirety as manifestly inadmissible, on the ground that it was out of time.

Costs

48Pursuant to the first subparagraph of Article87(3) of the Rules of Procedure of the General Court, the Court may, where the circumstances are exceptional, order that the costs be shared.

49In that regard, the Court considers that the multiple express undertakings made by the Commission, in its letters of 3 February, 28 February and 14April 2011, as observed by the Court in paragraph43 above, could have given rise to legitimate expectations, on the part of the applicants, that a final reply to the confirmatory application of 15December 2010, was imminent. Therefore, as is apparent from their observations on the application for a declaration that there is no need to adjudicate, the applicants could have thought, wrongly but understandably in light of the express undertakings made by the Commission, that the processing of that application was ongoing and that the expiry date of the prescribed time-limit had been postponed.

50Furthermore, it should be noted that, contrary to the express undertakings made by the Commission, in its letters of 3 February, 28 February and 14April 2011, to adopt a final reply to the confirmatory application within a short period, that reply was not finally made until 3February 2012, that is, the day before one year had passed after expiry of the prescribed time-limit provided in Article8 of Regulation No1049/2001. Therefore, the Commission clearly and seriously exceeded that limitation period.

51Having regard to the exceptional circumstances in which the Commission processed the confirmatory application, it is fair that the latter should pay, in addition to its own costs, three quarters of the costs incurred by the applicants. The applicants shall bear one quarter of their own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby orders:

1.The action is dismissed as manifestly inadmissible.

2.The European Commission is ordered to bear its own costs and to pay three quarters of the costs of ClientEarth, Friends of the Earth Europe, Stichting FERN and Corporate Europe Observatory, which shall bear one quarter of their own costs.

Luxembourg, 13November 2012.

* Language of the case: English.