(Action for annulment— Access to documents— Regulation (EC) No1049/2001— Correspondence between the Commission and two Member States regarding the implementation of a Transitional National Plan (TNP) under Directive 2010/75

ORDER OF THE GENERAL COURT (Eighth Chamber)

30 April 2015 (*)

(Action for annulment— Access to documents— Regulation (EC) No1049/2001— Correspondence between the Commission and two Member States regarding the implementation of a Transitional National Plan (TNP) under Directive 2010/75/EU— Implied refusal of access— No need to adjudicate— New claims— Inadmissibility)

In Case T‑250/14,

European Environmental Bureau (EEB), established in Brussels (Belgium), represented by C.Stothers, Solicitor, M.Van Kerckhove and C.Simphal, lawyers,

applicant,

v

European Commission, represented by J.Baquero Cruz and F.Clotuche-Duvieusart, acting as Agents,

defendant,

APPLICATION for annulment of the implied decision of the Commission of 13February 2014 refusing access to documents from the Republic of Bulgaria and the Czech Republic,

THE GENERAL COURT (Eighth Chamber),

composed of D.Gratsias, President, M.Kancheva and C.Wetter (Rapporteur), Judges,

Registrar: E.Coulon,

makes the following

Order

Background to the proceedings

1By letter dated 10October 2013 the applicant, the European Environmental Bureau (‘the EEB’), a federation of environmental organisations and other associations, applied to the European Commission for access ‘to all the information on the changes to the [Transitional National Plans]’. Transitional National Plans (‘TNPs’) were established by Directive 2010/75/EU of the European Parliament and of the Council of 24November 2010 regarding industrial emissions (integrated pollution prevention and control) (OJ 2010 L334, p.17), and in particular Article32 thereof.

2On 10December 2013 the Commission sent a letter to the applicant, enclosing most of the documents requested. The information concerning the Republic of Bulgaria and the Czech Republic was missing, those Member States being opposed to disclosure of that information in accordance with Article4(5) 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).

3On 20December 2013 the applicant made a confirmatory application to the Commission. On 23January 2014 the Commission indicated that the period of 15 working days for replying to such an application pursuant to Article8(2) of Regulation No1049/2001 had been extended by 15 days. On 13 February 2014, on the expiry of that period, the Commission justified its delay on the grounds that the re-consultation of the two States concerned had not yet been completed, which the applicant took as a negative response within the meaning of Article8(3) of that regulation (‘the contested decision’).

4On April 222014 the applicant filed a notice of appeal against the contested decision. The General Court Registry served notice of the action on the Commission on 28April 2014. Several days later, on 16May 2014, the Commission took a new decision giving access to the outstanding documents, despite the objections of the Czech Republic. However, the Czech Republic did not reply within the time-limit of 10 working days provided for in Article5(6) of Commission Decision 2001/937/EC, ECSC, Euratom amending its rules of procedure (OJ 2001 L345, p.94). The documents concerning that Member State were, therefore, in fact transmitted to the applicant on 12June 2014.

Forms of order sought

5The applicant claims that the Court should:

–annul the contested decision;

–order the Commission to pay the costs.

6By statement lodged at the General Court Registry on 17June 2014, the Commission made an application seeking a decision from the General Court that there is no need to adjudicate and seeking costs.

7On 21August 2014 the applicant gave its observations on that application and claimed that the Court should:

–annul the contested decision;

–order the Commission to compensate the applicant for the damage caused by its delay in providing the requested documents in the sum of EUR10000.

–order the Commission to pay the costs.

Law

8The Commission submits that the application is devoid of purpose, because it has supplied all the documents requested.

9The applicant maintains its initial heads of claim and to those adds its claim for damages mentioned in paragraph7 above.

10Regarding the original heads of claim, the applicant relies on the line of authority deriving from the judgment of 7June 2007 in Wunenburger v Commission (C‑362/05P, ECR, EU:C:2007:322) and submits that the illegality alleged against the Commission in the present case should be prevented from recurring and that this objective can be achieved, according to the applicant, only by annulment, in contrast to the situation in the cases it cites from the General Court’s case-law.

11As to the claim for damages, the applicant is of the view that this is an amendment of the original form of order sought, within the meaning of the order of 9November 2011 in ClientEarth and Others v Commission (T‑120/10, EU:T:2011:646).

12It is necessary to rule first on the Commission’s application for a declaration that there is no need to adjudicate.

Whether there is no longer any need to adjudicate

13It is clear from an examination of the file that all the documents covered in the initial application of 10October 2013 have been sent to the applicant, which, moreover, the latter does not contest. The applicant has, therefore, achieved a satisfactory outcome, even if it had to bring proceedings in order for the outstanding documents to be communicated to it. That is, indeed, the reason for the continuation of the action for annulment: the applicant states that it fears the delay in supplying the documents and the need to take judicial proceedings will be repeated in other cases in the future.

14According to settled case-law, 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 (judgment of 10December 2010 in Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, ECR, EU:T:2010:511, paragraph41, and order in ClientEarth and Others v Commission, paragraph11 above, EU:T:2011:646, paragraph33).

15The applicant’s interest in bringing proceedings must, having regard to the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible (judgment in Ryanair v Commission, paragraph14 above, EU:T:2010:511, paragraph42, and order in ClientEarth and Others v Commission, paragraph11 above, EU:T:2011:646, paragraph34).

16In the present case it must be noted that, at the time the application was lodged, the applicant had an interest in applying for the annulment of the contested decision consisting of the implied refusal of the applicant’s request for access to documents of 10October 2013, in so far as that related to the documents from the Republic of Bulgaria and the Czech Republic. Its application was, therefore, admissible on that date.

17However, the interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be likely, if successful, to procure an advantage for the party bringing it (judgment in Ryanair v Commission, paragraph14 above, EU:T:2010:511, paragraph43, and order in ClientEarth and Others v Commission, paragraph11 above, EU:T:2011:646, paragraph36).

18If the applicant’s interest in bringing proceedings disappears in the course of the proceedings, a decision on the merits cannot bring him any benefit (judgment in Ryanair v Commission, paragraph14 above, EU:T:2010:511, paragraph44, and order in ClientEarth and Others v Commission, paragraph11 above, EU:T:2011:646, paragraph37).

19In the present case it is agreed that the Commission supplied the missing documents on 26May 2014 (from the Republic of Bulgaria) and on 12June 2014 (from the Czech Republic). It follows that there is no longer any need to adjudicate on the present application in so far as it concerns the contested decision, the refusal that it reflects having been deprived of substance by the disclosure of the documents requested.

20It must be added that, if the interest upon which an applicant relies concerns a future legal situation, he must demonstrate that the prejudice to that situation is already certain. Accordingly, the applicant cannot rely upon future and uncertain situations to justify its interest in applying for annulment of the contested act (see, in that regard, orders of 15May 2013 in Post Invest Europe v Commission, T‑413/12, ECR, EU:T:2013:246, paragraph23, and 11November 2013 in Mory and Others v Commission, T‑545/12, EU:T:2013:607, paragraph27). It is true that it follows from the case-law of the Court that an applicant may retain an interest in seeking the annulment of an act of an institution of the European Union in order to prevent its alleged unlawful conduct recurring in the future (see Wunenberger v Commission, paragraph10 above, EU:C:2007:322, paragraph50 and the case-law cited). However, that is not the situation in this case. The questions linked to access to documents are eminently dependent on the circumstances of each case as, for example, in this case, the difficulties linked to the consultation process of two Member States which would not, perhaps, have been the same if the documents had concerned another area or had been drawn up in a different economic or political context. The interest in seeking an annulment cannot, therefore, be drawn from the general grounds of refusal in the contested decision, which has ceased to exist because of the transmission, shortly after the introduction of the appeal, of the documents which had not yet been supplied by the Commission.

21There is, therefore, no need to rule on the claim for annulment of the contested decision.

The claim for compensation

22Under Article44(1) of the Rules of Procedure of the General Court, an applicant is required to state in his application the subject-matter of the proceedings and the forms of order sought. It is settled case-law that, although Article48(2) of those rules authorises, in certain circumstances, new pleas in law to be introduced in the course of proceedings, the provision cannot in any circumstances be interpreted as authorising the applicant to bring new claims before the court and thereby modify the subject-matter of the proceedings (judgments of 12July 2001 in Banatrading v Council, T‑3/99, ECR, EU:T:2001:187, paragraphs28 and 29, and 13June 2012 in Insula v Commission, T‑366/09, EU:T:2012:288, paragraph88).

23In the present case it is clearly apparent from the documents before the Court that the claim for damages is new, for it was presented for the first time at the stage of observations on the application for a declaration that there is no need to adjudicate. The applicant wrongly presents that claim as an amendment to the claim for annulment, relying on the judgment of 19January 2010 in Co-Frutta v Commission (T‑355/04 and T‑446/04, ECR, EU:T:2010:15, paragraphs60 and 71) and the order in ClientEarth and Others v Commission, paragraph11 above (EU:T:2011:646, paragraph51).

24The express wording of those decisions invalidates the applicant’s claims: the judgment in Co Frutta v Commission (paragraph23 above, EU:T:2010:15) states that ‘compensation for any loss occasioned by failure to comply with the time-limits for responding can be sought before the General Court, in the context of an action for damages’ (paragraph60) which means, either, in the context of the same action, that claims for damages are submitted at the same time as claims for annulment, and on the basis of the latter being well founded, or, in the context of a later but separate action, based on the favourable outcome for the applicant in the proceedings for annulment, claims for a declaration that the institution concerned is liable by reason of its unlawful act. Moreover, the final sentence of paragraph71 of that judgment reproduces the terminology appearing in paragraph60 therein. As regards the order in ClientEarth and Others v Commission, paragraph11 above (EU:T:2011:646), it states in paragraph51 that it is certainly open to the applicant to amend his claims but that must be in the context of an annulment application and where there are successive decisions, ‘regardless of the nature of the damage purportedly suffered and the legal remedy chosen to assert [his] rights’ (paragraph54 of the order). That statement covers the alternative set out at the beginning of this paragraph.

25Consequently, the claims for damages are new and must, as such, be dismissed as clearly inadmissible.

Costs

26Under Article87(2) of the Rules of Procedure, if several parties are unsuccessful, the Court is to decide how the costs are shared and under Article87(6) of those rules, where the case does not proceed to judgment, the costs shall be in the discretion of the Court.

27In the present case, on the one hand, it should be stated that it was the partial refusal of access to documents by the Commission in the contested decision that obliged the applicant to bring these proceedings before the initial request was satisfied in full on 10October 2013. On the other hand, it is important to emphasise that although the applicant’s claims for damages have been rejected as inadmissible, this is of a clearly secondary nature in the present proceedings.

28In those circumstances, the fact that, in order to safeguard its rights, the applicant had no choice other than to bring the present action against the contested decision is good grounds for ordering the Commission to bear its own costs and those incurred by the applicant.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby orders:

1.There is no longer any need to adjudicate on the claims of the European Environmental Bureau (EEB) for the annulment of the implied decision of the European Commission of 13February 2014 refusing access to documents from the Republic of Bulgaria and the Czech Republic.

2.The claims for damages presented by the EEB are dismissed as manifestly inadmissible.

3.The Commission is ordered to pay, in addition to its own costs, those of the EEB.

Luxembourg, 30 April 2015.

* Language of the case: English.