(Access to documents— Regulation (EC) No1049/2001— Regulation (EC) No1367/2006

ORDER OF THE GENERAL COURT (Sixth Chamber)

27February 2019(*)

(Access to documents— Regulation (EC) No1049/2001— Regulation (EC) No1367/2006— Documents relating to endocrine-disrupting substances— Withdrawal of the decision refusing access— Disclosure after the action had been brought— Action which has become devoid of purpose— No need to adjudicate)

In Case T‑25/18,

Pesticide Action Network Europe (PAN Europe), established in Brussels (Belgium), represented by B.Kloostra, lawyer,

applicant,

v

European Commission, represented by A.Buchet, I.Naglis and G.Gattinara, acting as Agents,

defendant,

APPLICATION under Article263 TFEU seeking annulment of Commission Decision C(2017) 7604 final of 9November 2017, in so far as it refuses access to documents relating to endocrine-disrupting substances,

THE GENERAL COURT (Sixth Chamber),

composed of G.Berardis, President, S.Papasavvas (Rapporteur) and O.Spineanu-Matei, Judges,

Registrar: E.Coulon,

makes the following

Order

Background to the dispute

1On 12November 2016, the applicant, Pesticide Action Network Europe (PAN Europe), lodged with the European Commission an application for access to documents relating to endocrine-disrupting substances, on the basis 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) and 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).

2On 31January 2017, the Commission granted full access to 109 of the 661 documents at issue, as well as partial access to 416 of those documents, and refused access to 82 of them. 54 documents were already available to the public.

3On 19February 2017, the applicant lodged a confirmatory application with the Commission.

4By decision of 8June 2017, the Commission ruled on the confirmatory application in so far as it related to 47 briefings and granted access to those briefings.

5By its Decision C(2017) 7604 final of 9November 2017 (‘the contested decision’), the Commission granted full access to one further document and further partial access to another document. It thus confirmed refusal of full or partial access to 34 documents.

Events subsequent to the bringing of the action

6On 10July 2018, the applicant repeated its request for access to the documents concerned.

7By decision of 27August 2018, the Commission granted further partial access to certain documents and refused access or further partial access to others, in particular on the basis of the second subparagraph of Article4(3) of Regulation No1049/2001 (exception relating to the protection of the decision-making process after a decision on a matter has been taken).

8On 14September 2018, the applicant lodged a confirmatory application with the Commission.

9By Decision C(2018) 8470 final of 5December 2018, the Commission granted access to 33 further documents, consequently maintaining a refusal to grant access only in respect of one of the requested documents.

Procedure and forms of order sought

10By application lodged at the Court Registry on 19January 2018, the applicant brought the present action.

11In its application, the applicant claims that the Court should:

–annul the contested decision;

–order the Commission to pay the costs.

12In its defence, the Commission contends that the Court should:

–dismiss the application;

–order the applicant to pay the costs.

13By order of 23October 2018, the Court (Sixth Chamber) requested the Commission, on the basis of Article91(c) and Article104 of the Rules of Procedure of the General Court, to produce a document. The Commission produced the document at issue within the prescribed period.

14By a separate document, lodged at the Court Registry on 13December 2018, the Commission made an application for a declaration that there was no need to adjudicate on part of the action, in so far as it related to the 33 documents mentioned in paragraph9 above.

15On 18January 2019, the applicant lodged its observations on that application at the Court Registry, indicating that there was no longer any need to adjudicate on the action and that the Commission should be ordered to pay the costs.

Law

16Under Article130(2) and (7) of the Rules of Procedure, if a party so requests, the Court may declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.

17In the present case, since the Commission has requested that it be held that there is no longer any need to adjudicate on part of the action, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on the Commission’s application without taking further steps in the proceedings.

18In that regard, first, it should be stated that, by adopting the decision of 5December 2018, the Commission granted access to 33 of the 34 documents in respect of which that institution, by the contested decision, had refused to grant access. The Commission has thus de facto withdrawn the contested decision, in so far as it related to those 33 documents.

19Second, it is noteworthy that the applicant accepts that, with the decision of 5December 2018, it obtained the information which it considered essential for public debate. It thus takes the view that the present action can no longer procure any advantage for it. With particular regard to the document in respect of which the Commission has maintained the refusal to grant access, the applicant considers that, taking into account the statements provided by the Commission, its content is of no specific interest in respect of the debate on the specifying criteria for the determination of endocrine-disrupting substances. It thus considers that there is no longer any need to adjudicate on the action, with the exception of costs.

20In those circumstances, it must be held that the present action has become devoid of purpose and, consequently, that there is no longer any need to adjudicate on it.

Costs

21Article137 of the Rules of Procedure provides that, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

22In the present case, it should be noted that the dispute has become devoid of purpose, inter alia as a result of the Commission’s adoption of a decision granting access, following a new request and a confirmatory application from the applicant, to most of the documents to which access had been refused by the contested decision.

23Thus, in the light of the factual circumstances of the case, the Commission must be ordered to bear its own costs and to pay those incurred by the applicant.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby orders:

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

2.The European Commission shall pay the costs.

Luxembourg, 27February 2019.

*Language of the case: English.