Justice & Environment v Commission (Judgment) [2017] EUECJ T-727/15 (23 January 2017)

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(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to an infringement procedure opened by the Commission against the Czech Republic — Refusal of access — Exception concerning the protection of inspections, investigations and audits — General presumption — Overriding public interest — Aarhus Convention — European Convention for the Protection of Human Rights and Fundamental Freedoms)

Association Justice & Environment, z.s., established in Brno (Czech Republic), represented by S. Podskalská, lawyer,

European Commission, represented by L. Pignataro-Nolin, F. Clotuche-Duvieusart and M. Konstantinidis, acting as Agents,

APPLICATION pursuant to Article 263 TFEU seeking the annulment of the initial Commission decision of 19 August 2015 and the confirmatory Commission decision of 15 October 2015 refusing to grant the applicant access to certain documents contained in the file of the infringement procedure 2008/2186 against the Czech Republic and regarding the application of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1),

composed of A. M. Collins (Rapporteur), President, M. Kancheva and R. Barents, Judges,

having regard to the fact that no request for a hearing was submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 The applicant, Association Justice & Environment, z.s., is an association governed by Czech law, consisting of a certain number of associations established in several Member States of the European Union, whose object is the adoption and application of stronger environmental legislation to protect the environment, people and nature.

2 On 7 August 2015, the applicant submitted to the European Commission an application for access to certain documents relating to the infringement procedure 2008/2186 opened by that institution against the Czech Republic concerning the application of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1). In its application for access, the applicant claimed that disclosure of the requested documents was warranted by the existence of an overriding public interest.

3 By letter of 19 August 2015, the Commission rejected that application for access, pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) (‘the initial decision’). The Commission stated, in particular, that the requested documents related to an infringement procedure under way and were covered by the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of the purpose of inspections, investigations and audits and that there was no overriding public interest justifying their disclosure.

4 On 8 September 2015, the applicant submitted a confirmatory application for access to the abovementioned documents pursuant to Regulation No 1049/2001, emphasising the fact that, in its view, there was in the present case an overriding public interest justifying their disclosure.

5 By letter of 15 October 2015, the Commission confirmed the refusal of access to the requested documents (‘the confirmatory decision’). It stated that the application covered five documents, namely, its letter of formal notice of 28 January 2010, the reply of the Czech Republic of 25 March 2010, its reasoned opinion of 1 October 2010, its additional letter of formal notice of 22 February 2013 and its reasoned opinion of 26 March 2015. It examined the application for access in the light of Regulation No 1049/2001 and Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 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 L 264, p. 13).

6 In the confirmatory decision, the Commission based its refusal on the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, namely, the protection of the purpose of inspections, investigations and audits. In fact, infringement procedure 2008/2186 was still under way at the time of the application for access. Accordingly, disclosure of documents featuring in the file for that procedure would have risked adversely affecting the dialogue between the Commission and the Czech Republic during the pre-litigation stage. Thus, in the confirmatory decision, the Commission based its refusal on the general presumption of non-disclosure of the documents of the infringement procedure during its pre-litigation stage. Furthermore, it reached the conclusion that Article 6(1) of Regulation No 1367/2006 was not applicable and that no overriding public interest justified disclosure of the requested documents. Finally, it added that the applicant could not be given partial access because the requested documents were fully covered by the exception laid down in the third indent of Article 4(2) of Regulation 1049/2001.

7 By application lodged at the Court Registry on 14 December 2015, the applicant claims that the Court should:

9 Without raising a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court, the Commission contends that the action is inadmissible so far as concerns the initial decision, on the ground that it is a preparatory act not liable to affect the legal position of the applicant.

10 It should be pointed out that, according to settled case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51).

11 It is also apparent from settled case-law concerning the admissibility of actions for annulment that the substance of the contested acts must be examined and the intention of those who drafted them as well, in order to classify those acts. In that regard, it is in principle those measures that definitively determine the position of the Commission upon the conclusion of an administrative procedure, and are intended to have legal effects capable of affecting the interests of the applicant, are open to challenge, and not intermediate measures whose purpose is to prepare for the definitive decision, or measures that are mere confirmation of an earlier measure not challenged within the prescribed period (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).

12 With regard to Regulation No 1049/2001, it should be pointed out that it is the object of Articles 7 and 8 of that regulation, by providing for a two-stage procedure, to achieve, first, the swift and straightforward processing of applications for access to documents of the institutions concerned and, second, as a priority, an amicable settlement of disputes that may arise. For cases in which such a dispute cannot be resolved by the parties, the abovementioned Article 8(1) provides two remedies, namely, the institution of court proceedings or the lodging of a complaint with the Ombudsman (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 53).

13 The procedure laid down in Articles 7 and 8 of Regulation No 1049/2001, in that it provides for the making of a confirmatory application, enables in particular the institution concerned to re-examine its position before taking a definitive refusal decision which could be the subject of an action before the courts of the Union. Such a procedure makes it possible for initial applications to be dealt with more promptly and, consequently, more often than not to meet the applicant’s expectations, while also enabling the institution to adopt a detailed position before definitively refusing access to the documents sought by the applicant, in particular where the applicant repeats the request for disclosure of those documents, notwithstanding a reasoned refusal by that institution (judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 54).

14 It follows that the response to an initial application within the meaning of Article 7(1) of Regulation No 1049/2001 is only the first position adopted which, in principle, is not actionable, since it does not produce legal effects, failing any exceptional circumstances (see, to that effect, judgments of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 36, and of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraph 36). The situation is different, in particular, where the response to the initial application is vitiated by a defect in that it failed to inform the applicant of its right to make a confirmatory application (see, to that effect, judgment of 9 September 2009, Brink’s Security Luxembourg v Commission, T‑437/05, EU:T:2009:318, paragraphs 74 and 75), or where an institution adopts a definitive position with a response to an initial application (see, to that effect, judgments of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraphs 58 to 62, and of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 36).

15 In the present case, the applicant has identified no exceptional circumstances justifying the admissibility of the action, in so far as it is brought against the initial decision. Moreover, it follows from the examination of the initial decision that the latter did not contain the Commission’s definitive position, since the applicant was informed of its right to make a confirmatory application asking the Commission to reconsider its position, which the applicant indeed did.

16 In the light of the foregoing, the action must be dismissed as inadmissible in so far as it is brought against the initial decision.

17 In support of its application for annulment of the confirmatory decision, the applicant raises a single plea in law alleging infringement of the last clause of Article 4(2) of Regulation No 1049/2001, read in conjunction with Article 6(1) of Regulation No 1367/2006, to the extent that there was an overriding public interest in the disclosure of the requested documents. In that respect, it draws on a series of considerations relating, first, to the concept of an overriding public interest and, secondly, to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), the Charter of Fundamental Rights of the European Union, the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed at Aarhus on 25 June 1998 (‘the Aarhus Convention’) and the principle of transparency.

18 On the one hand, concerning the concept of an overriding public interest, first, the applicant claims that, according to a series of official documents produced by the Czech Republic, the air pollution in specific areas constitutes one of the most serious environmental problems of that Member State. Furthermore, this problem of pollution, the cause of a wide range of health problems for the population, is even liable to constitute a threat to human life. Accordingly, it is important that the people affected and the non-governmental organisations concerned possess all the relevant information to support the requests they send to the competent national authorities in order for the latter to adopt the measures necessary to put an end to that situation.

19 The applicant also claims that the policies implemented so far in the Czech Republic have not succeeded in limiting air pollution to the levels that would be necessary for the protection of public health and the environment. Access to the documents requested by the applicant would enable the relevant public to submit useful comments in the context of the administrative proceedings under way on the adoption of regional air quality management plans envisaged by the Czech legislation transposing Directive 2008/50 and in the context of the judicial proceedings for the improvement of air quality. In its response, the applicant adds that those regional plans do not contain sufficient measures to improve the situation within a reasonable period.

20 In that respect, the applicant notes that the application for access at issue does not pursue the achievement of its statutory objectives, as the Commission suggests, but the protection of the health of the millions of citizens affected by air pollution in the Czech Republic.

21 It admits, in the response, that it is not in a position to prove what concrete information contained in the requested documents could specifically be used to improve these problems of air pollution. However, it may be presumed that those documents contain information that could be useful in the context of administrative and legal procedures under way at national level for the improvement of air quality.

22 Moreover, the information relating to the infringement procedure at issue would be very useful for the public in the context of the environmental impact assessment procedures laid down in Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ 2010, L 334, p. 17).

23 In support of its argument that disclosure of the requested documents would enable the relevant public to improve compliance with Directive 2008/50 in the Czech Republic, the applicant adds that, according to the case-law, persons concerned by air pollution must be able to rely on directives designed to reduce that pollution and to protect public health, such as Directive 2008/50.

24 Secondly, the applicant observes that one of its member associations, Frank Bold, provides non-governmental organisations and individuals in administrative and legal proceedings relating to air pollution with free legal assistance. The requested documents would enable Frank Bold to provide more effective assistance.

25 Moreover, experience and savoir faire in the defence of air quality might be shared within the network of the associations linked to the applicant, which could be useful in other countries facing problems of air pollution.

26 Thirdly, according to the applicant, disclosure of the requested documents is justified by an overriding public interest, in so far as keeping the public informed about the work of the Commission encourages the Member States to improve compliance with EU environmental law.

27 Furthermore, disclosure of the requested documents would enable other non-governmental organisations to provide useful information and comments in the context of the infringement procedure at issue.

28 Fourthly, the applicant submits that, taking into account the length of the infringement procedure, it is unlikely that disclosure of the requested documents would undermine any real possibility of the Czech Republic complying of its own accord with the applicable EU law, when it has already had many chances to do so.

29 Furthermore, it claims that the Commission fails to provide detailed explanations demonstrating how the ‘atmosphere of mutual trust’ would be affected by the disclosure of the requested documents.

30 Fifthly, the applicant maintains that the grounds for refusal must be interpreted restrictively, taking into account the interest served by disclosure of the requested documents and the fact that the information contained in those documents relates to emissions into the environment, by virtue of the second sentence of Article 6(1) of Regulation No 1367/2006 and Article 4(4) of the Aarhus Convention.

31 According to the applicant, by virtue of the first sentence of Article 6(1) of Regulation No 1367/2006, information on emissions into the environment covered by the first and third indent of Article 4(2) Regulation No 1049/2001, with the exception of information concerning investigations, must be provided in every case. Accordingly, in the applicant’s view, the second sentence of Article 6(1) of Regulation No 1367/2006 is certainly applicable to documents relating to infringement procedures, for they are not covered by the first sentence of that provision. Therefore, in the context of investigations involving information relating to emissions into the environment, the Commission is obliged to interpret any ground for refusal restrictively.

32 On the other hand, without requesting a complete reversal of precedent, the applicant pleads for the introduction of some shift of interpretation of the applicable EU law in the light of the Charter of Fundamental Rights, the ECHR, the International Covenant on Civil and Political Rights, adopted by the UN General Assembly on 16 December 1966 (‘the ICCPR’), the Aarhus Convention, the principle of transparency and the principle of effectiveness.

33 In that context, first, the applicant invokes freedom of expression, which includes the freedom to receive information, guaranteed by Article 10 of the ECHR, as interpreted by the case-law of the European Court of Human Rights. Furthermore, it refers to Article 11 of the Charter of Fundamental Rights and Article 19(2) of the ICCPR, also relating to freedom of expression, including the freedom to receive information. On that basis, it seems to suggest that the Commission had an obligation not to impede the flow of information sought.

34 Secondly, the applicant states that it does not propose that the Court should directly apply Article 4(4) of the Aarhus Convention or declare Regulations No 1049/2001 and No 1367/2006 incompatible with that provision. However, it claims that the requirements of the Aarhus Convention should support an interpretation of the relevant provisions of Regulations No 1049/2001 and No 1367/2006 supporting the conclusion that there is an overriding public interest in disclosure of the requested documents.

35 Thirdly, the applicant submits that the position of the Commission and, more generally, the EU case-law are contrary to the principle of transparency affirmed in EU law. In that regard, it specifies that transparency guarantees greater legitimacy, effectiveness and accountability of the authorities to the citizen, which contributes to strengthening democracy. Accordingly, if the Court were to come to the conclusion that there is no overriding public interest justifying the disclosure of the documents at issue, the applicant requests it to revise its approach to providing information on environmental infringement procedures and make it more transparent for EU citizens.

36 Fourthly, the applicant pleads for a teleological interpretation of the EU legislation, in order to ensure the effectiveness of the provisions of EU law and the Aarhus Convention according to which the public interest in disclosure prevails when the requested information relates to emissions into the environment.

37 The applicant adds that the conditions laid down by the EU judicature in its case-law are so restrictive that they make application of the last clause of Article 4(2) of Regulation No 1049/2001 virtually impossible. According to the shift in the case-law requested by the applicant, the grounds of refusal must be interpreted more restrictively and the conditions in which the overriding public interest prevails when the information requested relates to emissions into the environment must be interpreted in a way more favourable to disclosure of the requested documents.

39 As a preliminary point, it is necessary to bear in mind that, under Article 15(3) TFEU, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to documents of the Union’s institutions, subject to the principles and the conditions that are defined by EU law. Moreover, the same right is recognised by Article 42 of the Charter of Fundamental Rights.

40 Regulation No 1049/2001 seeks, as indicated in recital 4 and Article 1 thereof, to give the public a right of access to documents of the institutions which is as wide as possible. It is also apparent from that regulation, in particular from recital 11 and Article 4 thereof, which lays down a system of exceptions to that right, that that right of access is, nevertheless, subject to certain limits based on reasons of public or private interest (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 40). Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgment of 13 September 2013, ClientEarth v Commission, T‑111/11, EU:T:2013:482, paragraph 48).

41 Under the exception relied on by the Commission, namely, the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, the institutions must refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure of the document.

42 The system of exceptions laid down in Article 4 of Regulation No 1049/2001, and particularly in paragraph 2 of that article, is based on a weighing up of the opposing interests in a given situation, that is to say, first, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on what interest must prevail in the particular case (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 42).

43 In the present case, given that the documents to which the applicant requests access appear in the Commission’s administrative file relating to the infringement procedure opened against the Czech Republic, it cannot be denied that they relate to an ‘investigation’, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.

44 In order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) of Regulation No 1049/2001. The institution concerned must also supply explanations as to how access to that document could specifically and effectively undermine the interest protected by an exception laid down in that article (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 44, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 68).

45 However, the case-law has acknowledged that it is open to the institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 45, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 69).

46 It must be held that, according to the case-law, it can be presumed that disclosure of the documents concerning an infringement procedure during its pre-litigation stage risks altering the nature of that procedure and changing the way it proceeds and, accordingly, that disclosure would in principle undermine the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001 (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 65).

47 Accordingly, the confirmatory decision cannot be criticised for basing its refusal on the existence of a general presumption of non-disclosure covering the documents relating to the infringement procedure against the Czech Republic, which was under way at the time of the application for access. Moreover, at least formally, the applicant does not contest the application of that presumption in the present case.

48 That general presumption does not exclude the possibility of demonstrating that a given document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest justifying disclosure of the document concerned by virtue of the last clause of Article 4(2) of Regulation No 1049/2001 (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 66).

49 It is however for the party requesting access to refer to specific circumstances to establish an overriding public interest which justifies disclosure of the documents concerned (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 94, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 90).

50 In that regard, the overriding public interest that may justify the disclosure of a document need not necessarily be distinct from the principles which underlie Regulation No 1049/2001 (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 92, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 92).

51 In the present case, the applicant’s arguments seek to demonstrate in particular the existence of an alleged overriding public interest in disclosure of the documents at issue.

52 First, the applicant claims that the air pollution in certain regions of the Czech Republic is a serious problem both for the environment and for human health, affecting millions of people. It must be held that protection of human health and the environment is a public interest capable of prevailing over maintaining the confidentiality of certain documents. However, it is for the applicant to demonstrate precisely in what way disclosure of the documents at issue would contribute to assuring protection of human health and the environment and would prevail in the present case over protection of the purpose of the investigations in infringement procedure 2008/2186.

53 In that respect, it must be recalled that, according to the case-law, general considerations relating to the protection of the environment and human health cannot provide an appropriate basis for establishing that, in the case in point, the principle of transparency was particularly pressing and capable of prevailing over the reasons justifying the refusal to disclose the documents in question (see, to that effect and by analogy, judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 93, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 93).

54 It must be held that the arguments advanced by the applicant do not meet those requirements. The applicant does not show in what specific way access to the requested documents would enable the relevant public to submit useful comments in the context of the on-going administrative proceedings on the adoption of regional air quality management plans or in the legal proceedings that it mentions. Nor, does it show specifically in what way the requested documents would be useful in the context of the Environmental Impact Assessment procedures laid down in Directive 2010/75.

55 Contrary to what the applicant claims in the reply, it cannot be presumed that the documents contain useful information for the purposes of the procedures mentioned. In fact, it is for the applicant to provide the proof required, which, as it seems to admit in paragraph 5 of the reply, it is not in a position to do.

56 It is true that the applicant cannot be required to prove that the specific content of the documents would be useful for ensuring the protection of the overriding public interest invoked, without having had access to the requested documents. Nevertheless, having regard to the nature of the requested documents, namely, two letters of formal notice and two reasoned opinions of the Commission as well as the reply of the Czech Republic which, as follows from Article 258 TFEU, contain only the Commission’s opinion on the compliance of a Member State with EU law and the latter’s observations on the matter, it was for the applicant to set out specifically and in detail the reasons for which, in its view, disclosure of the documents at issue was necessary to ensure protection of the overriding public interest invoked (namely, human health and the environment), which it has failed to do in the present case in spite of the fact that the Court had expressly invited it to do so by a written question.

57 It must be added that the judgment of 25 July 2008, Janecek (C‑237/07, EU:C:2008:447) cited by the applicant is irrelevant because, as is made clear in paragraph 36 et seq. of this judgment, it concerns the direct effect of an non-transposed directive, whereas the present proceedings concern an application for access to documents based on Regulation No 1049/2001. The possible direct effect of certain provisions of Directive 2008/50 is a question independent of that of the disclosure of the requested documents by virtue of Regulation No 1049/2001.

58 Secondly, as regards the argument that the requested documents would enable Frank Bold, a member association of the applicant, to provide its free legal assistance more effectively in the context of the administrative and legal proceedings relating to air pollution in the Czech Republic, it must be stated that it is for the applicant to demonstrate precisely in what way the disclosure of the documents at issue would contribute to assuring the protection of the interest invoked. It must be held that the applicant fails to set out how, precisely, disclosure of the requested documents would be necessary to enable Frank Bold to provide more effective legal assistance.

59 Moreover, the case-law has held that the fact that a non-governmental organisation requests documents for the purpose of acting in accordance with the objects stated in its governing documents, namely, protection of the environment, is not sufficient to demonstrate the existence of an overriding public interest within the meaning of Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 95). Accordingly, the applicant’s arguments on the usefulness of the disclosure of the requested documents for the activities of Frank Bold and the network linked to the applicant must be rejected.

60 Thirdly, as regards the argument that disclosure of the requested documents would keep the public informed about the work of the Commission and enable non-governmental organisations to provide useful comments on the infringement procedure at issue, first, it must be recalled that general considerations relating to the principle of transparency and the right of the public to be informed of the work of the institutions cannot justify the disclosure of documents relating to the pre-litigation stage of infringement procedures (judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraphs 91 and 93). In addition, the Commission, as it rightly stated and, moreover, as it has done in the present case, ensures that the public is informed about the progress of specific infringement cases through the regular publication of press releases.

61 On the other hand, the case-law has already denied that there was an overriding public interest in the context of an application for access to the documents of an environmental infringement procedure under way, introduced by a non-governmental organisation for environmental protection in order to be in a position to supplement the information held by the Commission (see, to that effect, judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 95). Accordingly, the arguments put forward by the applicant on this point must be rejected.

62 Fourthly, the applicant submits that, taking account of the length of the procedure, it is unlikely that disclosure of the requested documents would undermine any real possibility of the Czech Republic complying voluntarily with EU law. Furthermore, it takes the view that the Commission has not demonstrated how the atmosphere of mutual trust would be affected by the disclosure of the requested documents. In that regard, suffice it to observe that these considerations are immaterial, since they do not establish the existence of an overriding public interest in disclosing the requested documents. Furthermore, the applicant itself recognised that the Commission could rely in the present case on the general presumption of non-disclosure covering the documents relating to the infringement procedure under way against the Czech Republic. Thus, what is at issue in the present case is indeed the existence of an overriding public interest justifying disclosure of the requested documents. Accordingly, the arguments mentioned in the present paragraph, which fail validly to invoke the existence of such an interest, must in any case be rejected.

63 Fifthly, the applicant invokes the second sentence of Article 6(1) of Regulation No 1367/2006. As the case-law has already had occasion to specify, it is clear from the wording and the scheme of Article 6(1) that the ‘other exceptions’, within the meaning of the second sentence of that paragraph, do not include infringement procedures (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 82).

64 The first sentence of Article 6(1) of Regulation No 1367/2006 lays down a rule as regards the exceptions found in the first and third indents of Article 4(2) of Regulation No 1049/2001. The second sentence of Article 6(1) mentions not merely ‘other exceptions’, but the ‘other exceptions set out in Article 4 of Regulation No 1049/2001’. Consequently the exceptions covered by that provision are those set out in Article 4(1), the second indent of Article 4(2), Article 4(3) and Article 4(5) of Regulation No 1049/2001. Given that infringement procedures involve an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, which is referred to in the first sentence of Article 6(1) of Regulation No 1367/2006, that activity is not covered by the concept of ‘other exceptions’ set out in the second sentence of Article 6(1) of that regulation (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 83).

65 The drafting of the two sentences of Article 6(1) of Regulation No 1367/2006 and their scheme clearly indicate the legislature’s express intention of removing infringement procedures from the scope of that provision as a whole (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 84). The applicant’s argument must therefore be rejected.

66 In view of all the foregoing, all the applicant’s arguments relating to the existence of an overriding public interest in the disclosure of the requested documents must be rejected in the light of the existing case-law on the matter.

67 Moreover, the applicant puts forward a series of arguments that militate for the introduction of some shift in the EU case-law. It seems that the applicant’s position consists of requesting a more favourable interpretation of the conditions under which in such cases an overriding public interest may be invoked.

68 First, the applicant invokes freedom of expression, recognised in Article 11 of the Charter of Fundamental Rights, Article 10 of the ECHR, as interpreted by the case-law of the European Court of Human Rights, and Article 19(2) of the ICCPR.

69 In that regard, it should be pointed out that the applicant confines itself to citing Article 11 of the Charter of Fundamental Rights, without developing any independent argument based on that provision. That finding also applies to Article 19(2) of the ICCPR, to which the European Union has, moreover, not acceded.

70 It must be stated that, according to the explanations relating to the Charter of Fundamental Rights, Article 11 thereof corresponds to the right guaranteed in Article 10 of the ECHR.

71 If, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of EU law and if Article 52(3) of the Charter of Fundamental Rights requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument formally incorporated into EU law (judgment of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 45).

72 It must be recalled that, according to the case-law, Article 52(3) of the Charter of Fundamental Rights is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union (judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 47, and of 28 July 2016, JZ, C‑294/16 PPU, EU:C:2016:610, paragraph 50).

73 Even though the EU judicature has referred extensively to the case-law of the European Court of Human Rights on fundamental rights, it must be held that the case-law cited by the applicant covers situations very different from that of the present case (ECtHR, 14 April 2009, Társaság a Szabadságjogokért v. Hungary, CE:ECHR:2009:0414JUD003737405; 22 April 2013, Animal Defenders international v. United Kingdom, CE:ECHR:2013:0422JUD004887608; 25 June 2013, Youth Initiative for Human Rights v. Serbia, CE:ECHR:2013:0625JUD004813506; and 28 November 2013, Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria, CE:ECHR:2013:1128JUD003953407). On the one hand, none of those judgments concerned a request for access to documents in the context of a regime comparable to that of Regulation No 1049/2001. On the other hand, none of the cases concerned a refusal of access to documents in order to protect the purpose of investigations and, in particular, preserve the atmosphere of necessary confidentiality in the pre-litigation stage of an infringement procedure. Therefore, contrary to the applicant’s claim, the cited case-law of the European Court of Human Rights cannot be applied by analogy to the present case.

74 Accordingly, the arguments based on the Charter, the ECHR and the ICCPR must, in any event, be rejected.

75 Secondly, as regards the arguments relating to Article 4(4) of the Aarhus Convention, as the Commission points out, the EU judicature has held that the obligation to interpret restrictively the grounds for refusal of access cannot be understood as imposing a precise obligation (judgments of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 42, and of 13 September 2013, ClientEarth v Commission, T‑111/11, EU:T:2013:482, paragraphs 92 and 94). It is for this reason that, in EU law, that provision is not capable of producing direct effects for individuals.

76 In that regard, the applicant confines itself to asking the Court to interpret EU legislation in the light of Article 4(4) of the Aarhus Convention, according to which the grounds for refusal must be interpreted restrictively.

77 It is settled case-law that the primacy of international agreements concluded by the EU over secondary EU legislation requires that the latter be interpreted, in so far as is possible, in conformity with those agreements (judgment of 7 June 2007, Řízení Letového Provozu, C‑335/05, EU:C:2007:321, paragraph 16). In addition, it is common ground that the European Union is bound by the Aarhus Convention. Furthermore, it follows from the case-law that the fact that a provision of an international agreement does not have direct effect does not preclude reliance upon it for the purposes of a consistent interpretation of EU law. Thus, for example, if the case-law has noted that Article 9(3) of the Aarhus Convention does not have direct effect (see, to that effect, judgments of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 45, and of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraphs 55 and 61), it has, however, recognised, in spite of that absence of direct effect, a principle of consistent interpretation of secondary law in the light of that provision (see, to that effect, judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 51).

78 However, it must be held that the applicant has failed to demonstrate that the last clause of Article 4(2) of Regulation No 1049/2001 must necessarily be interpreted in the way desired by it in order to ensure compliance with Article 4(4) of the Aarhus Convention. It should be recalled that the case-law of the courts of the Union has already recognised that the exceptions to the right of access to documents must be interpreted and applied strictly (judgment of 13 September 2013, ClientEarth v Commission, T‑111/11, EU:T:2013:482, paragraph 48). Even though the applicant submits that this case-law should be even more restrictive, it must be stated that an interpretation compatible with Article 4(4) of the Aarhus Convention does not impose any obligation to reach the outcome it desires. This argument must therefore be rejected.

79 Thirdly, as regards the arguments relating to the principles of transparency and democracy, it must be noted that such general considerations are not capable of demonstrating the existence of an overriding public interest in disclosure of the requested documents (see paragraphs 53 and 60 above). In the same way, general considerations relating to the principles of transparency and democracy, as such and without further clarification, cannot justify the ‘shift’ in case-law requested by the applicant.

80 Fourthly, concerning the arguments relating to the teleological interpretation and effectiveness of the provisions of EU law and the Aarhus Convention, it suffices to observe that the right of access to documents conferred by Regulation No 1049/2001 is nevertheless subject to certain limits based on reasons of public or private interest (judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraphs 74 and 75). Moreover, the case-law has already established that the existence of certain general presumptions does not result in depriving the right of access to documents of all practical effect, given that the general presumptions at issue are not irrefutable (see, to that effect, judgment of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraph 42). This argument must therefore be rejected.

81 In the light of the foregoing, the single plea put forward by the applicant must be rejected as unfounded as regards the confirmatory decision.

83 Under Article 134(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.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Justice & Environment v Commission (Judgment) [2017] EUECJ T-727/15 (23 January 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T72715.html Cite as: ECLI:EU:T:2017:18, [2017] EUECJ T-727/15, EU:T:2017:18

Court of Justice of the European Communities (including Court of First Instance Decisions)