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

ORDER OF THE GENERAL COURT (Third Chamber)

14May 2019(*)

(Action for annulment— Access to documents— Regulation (EC) No1049/2001— Documents relating to a procedure initiated by the Commission against a Member State— Documents originating from the applicant— Application for access by a third party— Initial decision to grant access in part— Lack of purpose— Inadmissibility)

In Case T‑422/18,

Régie autonome des transports parisiens (RATP), established in Paris (France), represented initially by E.Morgan de Rivery, P.Delelis and C.Lavin, and subsequently by E.Delelis and C.Lavin, lawyers,

applicant,

v

European Commission, represented by A.Buchet, W.Mölls and C.Ehrbar, acting as Agents,

defendant,

APPLICATION pursuant to Article263 TFEU seeking annulment of the decision of the Directorate-General for Mobility and Transport of the European Commission of 5March 2018 ruling on an application for access to documents originating from the RATP in so far as it grants partial access to those documents,

THE GENERAL COURT (Third Chamber),

composed of S.Frimodt Nielsen, President, V.Kreuschitz (Rapporteur) and N.Półtorak, Judges,

Registrar: E.Coulon,

makes the following

Order

Background to the dispute

1On 19December 2017, the European Commission received an application for access to a number of documents, made pursuant to 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), which was registered under reference GESTDEM 2017/7530 (‘the initial application for access’), referring in particular to three documents (‘the documents at issue’) written by the applicant, the Régie autonome des transports parisiens (RATP).

2The documents at issue are:

–a letter of 21May 2012 from the applicant’s chairman and managing director to the President of the Commission;

–a letter of 22May 2012 from the applicant’s chairman and managing director to the Director-General of the Directorate-General (DG) Mobility and Transport of the Commission (‘DG Move’);

–a letter of 28March 2013 from the applicant’s chairman and managing director to the Vice-President of the Commission.

3On 5March 2018, DG Move adopted and sent, by registered letter with acknowledgment of receipt and email, to the author of the initial application for access (‘the applicant for access’), a decision by which it partially granted him access to the documents at issue (‘the contested decision’). It also enclosed a redacted version of the documents at issue with the contested decision.

4On 19March 2018, the applicant for access sent, pursuant to Article7 of Regulation No1049/2001, a confirmatory application for access to the documents at issue in their entirety (‘the confirmatory application for access’) to the Secretariat-General of the Commission.

5On 20April 2018, DG Move informed the applicant for access that an error had been made in sending the contested decision and that the documents at issue should not have been disclosed to him. DG Move requested the applicant for access not to print, save or use the documents at issue and to destroy the messages which had been sent to him previously.

6On 25April 2018, DG Move requested the applicant for access to sign a declaration under which he undertook: (1) not to use, disclose, share, copy or process the redacted versions of the documents at issue disclosed on 5March 2018 or their content; (2) not to make public their content; and (3) to destroy any electronic or hard copy of the documents at issue. On the same date, the applicant for access returned the signed declaration.

7On 27April 2018, on reading the Commission’s reply to the questions put by the President of the General Court in the proceedings for interim relief which it had brought on 23April 2018, registered under case number T‑250/18R and also relating to the disclosure of the documents at issue following an earlier application for access, the applicant became aware of the initial application for access and the disclosure, in error, by the Commission to the applicant for access of a redacted version of the documents at issue.

8On 4May 2018, a meeting was held between the applicant and the Commission during which the applicant requested that the Commission disclose to it the email of 5March 2018 to the applicant for access and the documents sent to him on the same date.

9On 23May 2018, the applicant repeated in writing its request for a copy of the email of 5March 2018 and of all the documents, including the documents at issue, sent to the applicant for access.

10On 7June 2018, the Secretary-General of the Commission adopted a decision on the confirmatory application for access (‘the decision of 7June 2018’) (see paragraph4 above). In that decision, he refused to make any disclosure of the documents at issue on the ground that their disclosure would undermine the ongoing judicial proceedings in Cases T‑250/18, RATP v Commission, and T‑250/18R, RATP v Commission.

11On 12June 2018, the Commission sent the applicant the contested decision, the index of the 27 documents identified by the Commission as being concerned by the initial application for access and the documents at issue as they had been sent to the applicant for access.

Procedure and forms of order sought

12By application lodged at the Court Registry on 6July 2018, the applicant brought the present action.

13By separate document lodged at the Court Registry on 11October 2018, the Commission raised a plea of inadmissibility under Article130 of the Rules of Procedure of the General Court. The applicant lodged its observations on that plea on 24November 2018.

14In the application, the applicant claims that the Court should:

–annul the contested decision in so far as it gives access to the documents at issue;

–order the Commission to pay the costs.

15In its plea of inadmissibility, the Commission contends that the Court should:

–principally, declare the action for annulment inadmissible for lack of purpose;

–in the alternative, declare the action for annulment inadmissible for lack of interest in bringing proceedings;

–order the applicant to pay the costs.

16In its observations on the plea of inadmissibility, the applicant contends that the Court should:

–dismiss the plea of inadmissibility;

–uphold its action;

–order the Commission to pay the costs.

Law

17Under Article130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on inadmissibility or lack of competence without considering the substance of the case. In the present case, since the Commission has applied for a decision on inadmissibility, the Court considers that it has sufficient information available to it from the documents in the file and has decided to rule on the application without taking further steps in the proceedings.

Admissibility of the plea of inadmissibility

18According to the applicant, only Article130(2) of the Rules of Procedure allows a plea of inadmissibility based on the ground of lack of purpose. Since Article130(2) of the Rules of Procedure was not relied on by the Commission in its plea of inadmissibility, the applicant submits that the objection must be dismissed as inadmissible.

19In that regard, it should be observed that, in support of its plea of inadmissibility, the Commission does not allege that the action became devoid of purpose during the proceedings, but that the action was devoid of purpose on the date when it was brought. Under Article130(1) of the Rules of Procedure, the defendant may request the Court to rule on admissibility without considering the merits of the case, and the lack of purpose of an action on the date when it is brought is a ground of inadmissibility.

20Furthermore and in any event, under Article129 of its Rules of Procedure, the Court may at any time of its own motion, after hearing the parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case. Since the inadmissibility of an action on the grounds of its lack of purpose on the date on which it is brought is an absolute bar to proceedings, the Court may of its own motion rule on that issue.

21The applicant is therefore wrong to claim that the plea of inadmissibility raised by the Commission is inadmissible.

Merits of the plea of inadmissibility

Arguments of the parties

22The Commission contends principally that the action must be declared inadmissible in that it relates to an act which no longer existed at the time when the action was brought. In the Commission’s view, the contested decision was replaced in its entirety by the decision of 7June 2018, taken following the confirmatory application for access. The latter decision establishes the institution’s final position.

23The Commission submits that the action brought by the applicant on 6July 2018 is devoid of purpose since it seeks the annulment of a legal act which had not existed since 7June 2018, the date on which it was replaced by the Commission decision of the same date in response to the confirmatory application for access. Thus, irrespective of the issue of interest in bringing proceedings, the actual cause of the action brought by the applicant did not exist at the time when the application initiating proceedings was lodged. The Commission further considers that the decision of 7June 2018 renders the applicant’s arguments nugatory, since as far as the substance of those arguments is concerned, the Commission decided in that decision to refuse entirely access to the documents at issue.

24In the alternative, the Commission considers that the present action must be declared inadmissible in that the applicant had no interest in bringing proceedings against the contested decision when the present proceedings were brought, since that decision had long ceased to have any effect on it.

25The Commission does not deny that, following an error, it disclosed redacted versions of the documents at issue to the applicant for access in an email of 5March 2018 and that it should not have done so. However, it considers that it did everything possible as soon as that error was identified so that it did not affect the applicant. In the Commission’s view, that action was effective, since the applicant for access undertook in writing not to make use of the documents at issue and to completely erase any trace of them, whether in hard copy or electronic form. The Commission considers that the applicant was fully aware of the terms of those written undertakings since it had been in possession of the document containing them since late April 2018.

26The Commission therefore submits that the applicant wrongly alleges, first, that the redacted versions of the documents at issue are accessible erga omnes and, second, that the applicant still had an interest in bringing proceedings on the date when the present action was brought, even though the contested decision had ceased to have any effect whatsoever on the applicant more than two months previously. The Commission considers that the applicant asserts, but does not prove, that the documents at issue are ‘potentially’ in its competitors’ possession.

27The applicant considers that the concepts of the purpose of the action and the interest in bringing the action overlap, since an applicant’s interest in bringing the action must, in view of the purpose of the action, exist at the stage of bringing the action, failing which it will be inadmissible. The applicant therefore examines together the two pleas of inadmissibility raised by the Commission.

28In the first place, the applicant submits that the contested decision has an independent, specific legal effect. In that regard, the applicant emphasises that it is the author of the documents at issue and that, as a result, the physical act of disclosing those documents following the contested decision affected it. The applicant observes that it was not until seven weeks had elapsed after the disclosure of the documents at issue on 5March 2018 that the Commission wrote to the applicant for access requesting him not to print, save or process those documents, which had been sent to him in error. That request, dated 20April 2018, was supplemented on 25April 2018 and led on the same day to the applicant for access undertaking not to use or disseminate the information contained in the documents at issue. The applicant infers from those facts that, for seven weeks, the dissemination of the information contained in the documents at issue had an effect erga omnes and must be treated in the same way as a ‘wrongful act’, with the result that that situation has harmful consequences which will continue to have an indisputable effect on its interests.

29In the applicant’s view, the contested decision has had a legal effect on it, since, first, the declaration by the applicant for access of 25April 2018 could not annul the effect erga omnes of the disclosure of the documents at issue for the seven weeks preceding the undertaking contained in that declaration and, second, that declaration, like the decision of 7June 2018, was capable of binding only the Commission and the applicant for access. The applicant submits that during the abovementioned seven-week period, the documents at issue could be passed to competing operators and used in the national proceedings which have led to questions being referred that are identical to those raised in the joined cases Mobit and Autolinee Toscane (C‑350/17 and C‑351/17). Although the applicant cannot assess the extent of that disclosure, it considers that the principle of sound administration required the Commission to inquire into the use which the applicant for access had made of the documents at issue in order to annul the de facto effect erga omnes of the contested decision if necessary, assuming this were possible. The applicant takes the view that the measures taken by the Commission to rectify its error were manifestly incapable of remedying a disclosure whose effect erga omnes was established and permanent. The applicant submits that the fact that, in the decision of 7June 2018, the Commission decided not to disclose the documents at issue since that disclosure would undermine the judicial proceedings brought against the Commission in Cases T‑250/18R and T‑250/18 not only fails to respond to the effect erga omnes of the disclosure, but confirms that the disclosure, which had already caused interference to those judicial proceedings, ought to have been regarded as liable to cause other interference in the future. Accordingly, the applicant considers that it still has an interest in the annulment of the contested decision.

30In the second place, the applicant submits that the decision of 7June 2018 could not annul and replace the contested decision because, to begin with, that decision authorised the disclosure erga omnes of the documents at issue between 5March and 25April 2018. The contested decision continues to have a legal effect in that the documents at issue which were sent to third parties by the applicant for access may still continue to be disclosed to other third parties by the first third parties, who legitimately took possession of those documents without the decision of 7June 2018 being capable of changing anything. The applicant further submits that the decision of 7June 2018 could not annul and replace the contested decision because the decision of 7June 2018 sought to set out conclusively the Commission’s approach to the initial and confirmatory applications for access in respect of the applicant for access. The Commission’s communications with the applicant for access of 20 and 25April 2018 had only an impact limited to the future disclosure of the documents at issue by the applicant for access to third parties since those communications had no effect on the previous use of those documents by the applicant for access or by third parties, who could still use them now.

31In the third place, the applicant submits that, even if the contested decision were regarded as having been replaced by the decision of 7June 2018, it would retain an interest in bringing proceedings against the contested decision. The applicant points out in that regard that an action, may, exceptionally, not become devoid of purpose despite the withdrawal or replacement of the act the annulment of which is sought if the applicant nevertheless retains a sufficient interest in obtaining a judgment formally annulling that act.

32The applicant considers that it has an interest in bringing proceedings and in having the contested decision annulled on the following grounds:

–first, in order to prevent any other illegality from occurring in the future which would go against its interests owing to the use of the documents at issue— which continues to be lawful— in proceedings for a preliminary ruling. An approach consisting of approving the Commission’s actions in the present case would lead to an acceptance of its services sending strictly confidential documents, whether in error or not, to applicants for access and those disclosures subsequently being ‘corrected’ several weeks later by the signature of declarations that bind the Commission and the applicant for access concerned alone and not third parties in any way;

–second, the contested decision continues to be in force erga omnes with regard to all those who have had access to the documents at issue on account of the Commission’s error, with the exception of the applicant for access, to whom the decision of 7June 2018 was addressed. In particular, the applicant considers that those documents still exist and may be produced against it on any relevant occasion in the context of national or EU court proceedings. It is clearly in the applicant’s interest to have the opportunity to assert that every physical act of dissemination that still allows the continuation in aeternum of the use erga omnes of the documents at issue should be declared invalid by the EU Courts, thereby ending, in a manner that is legal, mandatory, and may be relied on before a court, any possible future use of those documents.

Findings of the Court

33It must be recalled that only measures the legal effects of which are binding on, and are capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment under Article263 TFEU (judgments of 11November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph9; of 11November 2004, Portugal v Commission, C‑249/02, EU:C:2004:7044, paragraph35; and of 26January 2010, Internationaler Hilfsfonds v Commission, C‑362/08P, EU:C:2010:40, paragraph51).

34In order to determine whether a contested act constitutes a decision which may be the subject of an action for annulment, it is necessary to look to the substance of the act in question (see, to that effect, order of 14May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‑477/11P, not published, EU:C:2012:292, paragraph50 and the case-law cited).

35Furthermore, it must be borne in mind that an act that is withdrawn and replaced disappears entirely from the EU legal order. Withdrawal of an act therefore normally has an effect ex tunc (see, to that effect, orders of 28May 1997, Proderec v Commission, T‑145/95, EU:T:1997:74, paragraph26; of 14September 2011, Italy v Commission, T‑239/10, not published, EU:T:2011:471, paragraph22; and of 8June 2017, Elevolution— Engenharia v Commission, T‑691/16, not published, EU:T:2017:395, paragraph28 and the case-law cited).

36In the present case, the contested decision was followed by a confirmatory application under Article7(2) of Regulation No1049/2001 from the applicant for access requesting that the Commission reconsider its position. Following that application, the Secretary-General of the Commission adopted, pursuant to Article8 of Regulation No1049/2001, the decision of 7June 2018 completely refusing access to the documents at issue.

37The decision of 7June 2018 therefore withdrew and replaced the contested decision (see to that effect, judgments of 2October 2014, Strack v Commission, C‑127/13P, EU:C:2014:2250, paragraph89, and of 24May 2011, NLG v Commission, T‑109/05 and T‑444/05, EU:T:2011:235, paragraph102 and the case-law cited). Since the contested decision was only an initial statement of the Commission’s position, which was completely replaced by the decision of 7June 2018, it was the latter decision that closed the procedure and therefore constituted a decision (see, to that effect, judgment of 16October 2003, Co-Frutta v Commission, T‑47/01, EU:T:2003:272, paragraphs30 to 32).

38Thus, at the time when the action was brought, the decision of 7June 2018 had already replaced the contested decision and made it disappear from the EU legal order, with the result that it no longer had any effect, including on the applicant.

39Consequently, the present action was devoid of purpose at the date on which it was brought and must be declared inadmissible.

40That finding is not called into question by the various arguments put forward by the applicant.

41Admittedly, it has been held that an action for annulment may not become devoid of purpose where the act whose annulment is sought is withdrawn during the proceedings and the applicant nevertheless retains a sufficient interest in obtaining a judgment annulling that act (see, to that effect, judgments of 7June 2007, Wunenburger v Commission, C‑362/05P, EU:C:2007:322, paragraphs47 and 50 to 52; of 27September 2002, Tideland Signal v Commission, T‑211/02, EU:T:2002:232, paragraphs48 and 49; and order of 14September 2011, Italy v Commission, T‑239/10, not published, EU:T:2011:471, paragraph23).

42However, in the present case, the applicant’s action was already devoid of purpose at the time when it was brought (see paragraph38 above).

43Furthermore, in so far as the applicant claims that annulment of the contested decision would prevent its alleged unlawfulness from recurring in the future, it must be noted that each of the illegalities alleged by the applicant is closely linked to the particular circumstances of the present case and that the applicant has not sufficiently substantiated a risk that they might recur in the future. On the contrary, the Commission’s conduct, as described in paragraphs5 and 6 above, following the erroneous disclosure of the documents at issue shows that the risk that such disclosure might occur in the future has not been established.

44Moreover, it must be found that the applicant is wrong in its assessment that it still has an interest in bringing proceedings on the basis that the contested decision, unless annulled, will allegedly continue to be in force erga omnes except in respect of the applicant for access, to whom the decision of 7June 2018 was addressed. As stated in paragraph37 above, the contested decision was replaced by the decision of 7June 2018. It cannot therefore be claimed that the contested decision continues to be in force in respect of persons other than the applicant for access after the adoption of the decision of 7June 2018.

45Finally, in so far as the applicant justifies its interest in bringing proceedings by reason of the partial disclosure of the documents at issue following the adoption of the contested decision, it must be observed that annulment of the contested decision would not allow the status quo ante to be restored. Although a judgment of the Court annulling the contested decision has effect erga omnes owing to the force of res judicata and makes that decision disappear retroactively in respect of all persons (see, to that effect, judgment of 1June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03P and C‑471/03P, EU:C:2006:356, paragraph43 and the case-law cited), such an annulment would not remedy any effects of the disclosure of the documents at issue that are established following the adoption of that decision. Thus, the annulment of the contested decision would not reverse the effects of the disclosure of the documents at issue since the acquisition of that information by anybody who has read them is instantaneous and irreversible. The annulment of the contested decision is therefore not capable of procuring an advantage for the applicant.

46The Court’s decision to dismiss the action for annulment of the contested decision as inadmissible on the grounds that it is devoid of purpose does not, however, affect the applicant’s ability to bring an action for damages to the extent that it considers that the implementation of the contested decision has adversely affected it. Indeed, in accordance with the principle of the autonomy of remedies, a party may bring an action for liability without being required by any provision of law to seek annulment of the unlawful measure which caused him damage (see, to that effect, judgments of 14September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97P, EU:C:1999:407, paragraph59, and of 28February 2018, Vakakis kai Synergates v Commission, T‑292/15, EU:T:2018:103, paragraph30).

47It follows from all of the foregoing that the action must be dismissed as inadmissible.

Costs

48The Commission considers that the applicant should be ordered to pay the costs because, first, the action is inadmissible and, second, at the time when the action was lodged the applicant ought to have known that the disclosure of the documents at issue following an error was devoid of any effect, that a confirmatory application for access had been made and that the Commission had adopted a decision following that application which took due account of the applicant’s interests.

49The applicant submits that the Commission must be ordered to pay the costs in full because its plea of inadmissibility should be rejected and because the Opinion of Advocate General Saugmandsgaard Øe in the joined cases Mobit and Autolinee Toscane (C‑350/17 and C‑351/17, EU:C:2018:869) refutes the Commission’s interpretation of the scope of Regulation (EC) No1370/2007 of the European Parliament and of the Council of 23October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos1191/69 and 1107/70 (OJ 2007 L315, p.1).

50Under Article134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby orders:

1.The action is dismissed as inadmissible.

2.Régie autonome des transports parisiens (RATP) shall pay the costs.

Luxembourg, 14May 2019.

*Language of the case: French.