C-174/98

OPINION OF MR COSMAS — JOINED CASES C-174/98 P AND C-189/98 P

C — Infringement of the combined provisions of Articles 33 and 44 of the EC Statute of the Court of Justice I- 37 (1) Arguments of the parties I- 37 (2) My opinion I- 39 D — Infringement of the principle of the autonomy of the parties and the rights of the defence I-41 (1) Arguments of the parties I- 41 (2) My opinion I- 42 VI — Assessment of the appeal I- 45 VII — Costs I- 45 VIII — Conclusion I- 46

I — Introduction I I — Legal background

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transparency, on 6 December 1993 the request for access to documents in these Commission and the Council approved a terms: code of conduct concerning public access to Council and Commission documents (here- inafter 'the Code of Conduct'), 6 which sought to establish the principles governing access to documents held by those institu- tions. 'The institutions will refuse access to any document where disclosure could under- mine:

4. In implementation of that undertaking the Commission adopted, on 8 February 1994, on the basis of Article 162 of the EC — the protection of the public interest Treaty (now Article 218 EC), Decision (public security, international relations, 94/90/ECSC, EC, Euratom on public access monetary stability, court proceedings, to Commission documents (hereinafter inspections and investigations), 'Decision 94/90'), 7 under Article 1 of which the Code of Conduct was formally adopted. The text of that Code is set out in an Annex to Decision 94/90. — the protection of the individual and of privacy,

5. The Code of Conduct as thus adopted by the Commission sets out a general principle in these terms: — the protection of commercial and industrial secrecy,

'The public will have the widest possible access to documents held by the Commis- sion and the Council'. — the protection of the Community's financial interests,

7. Moreover, the Commission published Communication 94/C 67/03 on improved access to documents, 8in which it mentions inter alia that: 10 — In particular, in that Notice, the Commission stated that: '37. . . . national courts may, within the limits of their national procedural law, ask the Commission and in particular its Directorate-General for Competition for the following information. First, they may ask for information of a procedural nature to enable them to discover whether a certain case is pending before the Commission, whether a case has been the subject of a notification, whether the Commission has officially initiated a procedure or whether it has already taken a position through an official decision or through a comfort letter sent by its services. If necessary, national courts may also ask the Commission to give an opinion as to how much time is likely to be required for granting or refusing individual exemption for notified agreements or

. . There is 38. Next, national courts may consult the Commission on nothing automatic about the exemptions, points of law. Where the application of Article 85(1) and Article 86 causes them particular difficulties, national and each request for access to a document courts may consult the Commission on its customary practice in relation to the Community law at issue. As far will be considered on its own merits. . .'. as Articles 85 and 86 are concerned, these difficulties relate in particular to the conditions for applying these Articles as regards the effect on trade between Member States and as regards the extent to which the restriction of competition resulting from the practices specified in these provisions is appreciable. In its replies, the Commission does not consider the merits of the case. In addition, where they have doubts as to whether a contested agreement, decision or concerted practice is eligible for an individual exemption, they may ask the Commission to provide them with an interim opinion. If the Commission says that the case in question is unlikely to qualify for an exemption, national courts will be able to waive a stay of proceedings and rule on the validity of the agreement, decision or concerted practice.

40. Lastly, national courts can obtain information from the Commission regarding factual data: statistics, market studies and economic analyses. The Commission will 8 — OJ 1994 C 67, p. 5. endeavour to communicate these data. . . or will indicate 9 — Cited above in footnote 2. the source from which they can be obtained'.

The XXIVth Report on Competition Policy (1994) stated that the Commission had received a number of questions from national courts pursuant to the procedure described in Notice 93/C 39/05. 11 (3) The letter sent by the Commission in early 1995 to the Cour d'Appel (Court of Appeal), Paris, which had asked it for an opinion on contractual provi- sions concerning sales targets for motor 10. By letter dated 23 January 1996 vehicle agents in the light of Arti- Mr van der Wal, in his capacity as a lawyer cle 85(1) of the EC Treaty (now Arti- and member of a firm which deals with cle 81(1) EC) and Commission Regula- cases raising questions of competition at tion (EEC) No 123/85 of 12 December Community level, requested copies of some 1984 on the application of Arti- of the Commission's replies to those ques- cle 85(3) of the Treaty to certain cate- tions, namely: gories of motor vehicle distribution and servicing agreements. 14

(1) The letter dated 2 August 1993 from the Director-General of the Directo- rate-General for Competition (DG IV) to the Oberlandesgericht (Higher Regional Court) Düsseldorf, concern- ing the compatibility of a distribution agreement with Commission Regula- 11. By letter dated 23 February 1996 the tion (EEC) No 1983/83 of 22 June Director-General of DG IV refused the 1983 on the application of Arti- applicant's request on the ground that cle 85(3) of the Treaty to categories of disclosure of the requested letters would exclusive distribution agreements; 12 be detrimental to 'the protection of the

11 — Cited above in footnote 2. 13 — OJ, English Special Edition 1959-1962, p. 129. 12 — OJ 1983 L 173, p. 1. 14 — OJ 1985 I. 15, p. 16.

'... there is a risk that disclosure of the replies requested, which comprise legal analyses, could undermine the relationship and the necessary cooperation between the The Director-General also referred to the Commission and national courts. A court need to maintain a relationship of trust which has submitted a question to the between the Community executive and the Commission would obviously not appreci- national court authorities in the Member ate the reply being disclosed, particularly States. He stated that such considerations, where the question is relevant to a pending which are valid in all cases, must apply case...'.

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The Secretary-General added that the pro- must be construed and applied strictly, cedure in the present case differed consid- in order not to defeat the application of erably from that under Article 177 of the the general principle laid clown in the EC Treaty (now Article 234 EC) to which decision (WWF UK v Commission, the applicant had referred in his confirma- cited above, paragraph 56). tory application.

'41 Decision 94/90 is a measure granting 43 It follows from the use of the form citizens a right of access to documents "could", in the present conditional, held by the Commission (WWF UK v that in order to show that disclosure Commission, cited above, para- of documents relating to court pro- graph 55). 15 It follows from the broad ceedings could undermine the protec- scheme of that decision that it applies tion of the public interest, as required generally to requests for access to by the case-law (see paragraph 42 documents and that any person may above), before deciding on an applica- request access to any Commission tion for access to such documents, the document without needing to justify Commission must consider in respect the request (see, in that respect, Notice of each document requested whether, 95/C 156/05, cited at paragraph 2 in the light of the information available above). 16 The exceptions to that right to it, disclosure is in fact likely to undermine one of the facets of public interest protected by the first category 15 — This refers to Case T-105/95 WWF UK v Commission [1997] ECR II-313. of exception. Where that is the case, 16 — Cited above in footnote 2. the Commission must refuse access to

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OPINION OF MR COSMAS — JOINED CASES C-174/98 P AND C-189/98 P

46 It is settled case-law that fundamental rights form an integral part of the general principles of law whose obser- vance the C o m m u n i t y j u d i c a t u r e ensures (see, in particular, Opinion 48 The exception to the general principle 2/94 of the Court of Justice [1996] of access to Commission documents ECR I-1759, paragraph 33, and Joined based on the protection of the public Cases T-213/95 and T-18/96 SCK and interest when the documents at issue FNK v Commission [1997] are connected with court proceedings, ECR II-1739, paragraph 53). For that e n s h r i n e d in D e c i s i o n 9 4 / 9 0 , is purpose, the Court of Justice and the designed to ensure respect for that Court of First Instance draw inspira- fundamental right. The scope of that

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50 In that respect, a distinction must be drawn between documents drafted by 52 In this case, the applicant requested the the Commission for the sole purposes production of three letters, all concern- of a particular court case, such as the ing pending court proceedings. The letters in the present case, and other applicant did not claim that those documents which exist independently letters merely reproduced information of such proceedings. Application of the which was otherwise accessible on the exception based on the protection of basis of Decision 94/90. In that respect, the public interest can be justified only furthermore, it should be noted that the in respect of the first category of first letter related to the compatibility documents, because the decision whe- of a distribution agreement with Reg- ther or not to grant access to such ulation No 1983/83, the second con- documents is a matter for the appro- cerned the application of Regulation priate national court alone, in accor- No 26/62 and the third concerned the dance with the essential rationale of the i n t e r p r e t a t i o n of R e g u l a t i o n exception based on the protection of No 123/85 (sec paragraph 11 above). the public interest in the context of Those letters thus concerned points of court proceedings (see paragraph 48 law raised in the context of specific above). pending proceedings.

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53 In that respect, as the Commission has 18. M r van der Wal also requests the Court already pointed out, it is irrelevant to declare his appeal well founded, to set whether the three documents in issue aside the contested judgment and, in ruling contained business secrets, since the on the substance of the case, to annul the Commission's refusal to disclose those Commission's contested decision. In the replies was justified on the grounds set alternative, he requests that the case be out above (see paragraphs 45 to 52 referred back to the Court of First Instance above). for further adjudication in the light of the Court's judgment. Lastly, he requests that costs be awarded against the Commission.

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21. All these pleas are concerned essentially finally, the plea concerning the autonomy with the major premiss underlying the of the parlies and their rights of defence judicial reasoning adopted by the Court of (D). In order to reduce the risk of repeti- First Instance and, in particular, with the tion, resulting from the fact that the joined interpretation of the rules of law governing appeals contain common pleas involving the present dispute. The pleas in support of numerous limbs based on complex and the appeals revolve around the interpreta- frequently repeated assertions and argu- tion given by the Court of First Instance to ments, those assertions and arguments will Decision 94/90 on public access to Com- be grouped together as a single submission mission documents and, in particular, the with any discrepancies between the two interpretation given to the exception to the appeals being pointed out. general principle of free access to those documents, an exception which is based on 'the protection of the public interest (court proceedings)'. On that interpretation hinges both the plea alleging infringement of Article 6 of the ECHR and the plea concerning the grounds of the contested judgment insofar as the interpretation of A — Infringement of the ECHR the exception in question determines the limits of review of the adequacy, specific nature and coherence of the grounds. The ground of appeal alleging infringement of the principle of autonomy of the parties and the protection of their rights of defence (a) Arguments of the parties also rests on the interpretation of the exception in question. More specifically, in that context, the appellants contend that the Court of First Instance, in referring to Article 6 of the ECHR to interpret the 23. According to Mr van der Wal, in the scope of the exception in question, went contested judgment, the Court of First- beyond the bounds of the dispute submitted Instance has adopted a mistaken and to it and effectively substituted its own almost incomprehensible interpretation of grounds for the Commission's contested the principles deriving from Article 6 of the decision. ECHR thereby infringing Community law.

based in Strasbourg. In view of this obliga- judgment being subject to review by any tion, Mr van der Wal contends that Arti- other non-independent judicial body). cle 6 of the ECHR and the case-law of the Moreover, the appellant notes that, in abovementioned bodies do not support the referring to the position of the national position adopted by the Court of First court vis-à-vis the Community judicial Instance whereby it derives from that authorities, the Court of First Instance is article a principle of procedural autonomy concerned to establish the independence of for national courts. Moreover, he maintains the former from the Commission, but the that it is not correct to rely on Article 6 of Commission is not a judicial body as the ECHR to protect the position of a defined in Article 6 of the ECHR. In national court or define its position with conclusion, according to the appellant, respect to other legal bodies where such Article 6 of the ECHR in no way estab- reliance is unrelated to the individual lishes the principle of procedural autonomy interests of the parties in question. In for national and Community courts. paragraphs 47 and 48 of the contested judgment, the Court of First Instance adopts a line of reasoning contrary to the aims of Article 6 of the ECHR which seek to protect the individual interests of the citizen vis-à-vis the State. The Court of 2 6 . According to the Commission, the First Instance seems to consider that Arti- Court of Justice and the Court of First cle 6 of the ECHR establishes a right in Instance are not formally bound by the favour of the court. Consequently, by case-law of the European Commission of adding a new principle to the list of H u m a n Rights and the European Court of guarantees provided under Article 6 of the Human Rights even though that case-law is ECHR, namely the principle of procedural of major importance as far as the interpre- autonomy for national and Community tation of the ECHR is concerned. The courts, which has no basis in the case-law Court of Justice and the Court of First of the European Court of Human Rights Instance do not apply the ECHR, but rather nor any theoretical basis, the Court of First the general principles of Community law. Instance is infringing Community law. The Community is not party to the ECHR and therefore is not bound by the provi- sions relating to the Strasbourg judicial bodies.

31. As correctly noted therefore in the contested judgment, 18 the rules of the ECHR and the constitutional traditions 29. Finally, the Commission notes that the common to the Member States are a source reasoning adopted by the Court of First of inspiration for the general principles of Instance is not incompatible with the Community law. 19 Those rules are of fundamental aim of Article 6 of the ECHR. particular importance and, within the lim- In particular, it maintains there is no its of the above case-law, the Court of conflict between a court's independence Justice, on the one hand, assumes the role and the protection of citizens' rights. The of interpreter of the ECHR 20 and, on the former, which includes the court's proce- other hand, may not give an interpretation dural autonomy, is intended precisely to of Community law incompatible with the guarantee the fundamental rights of the observance of human rights as recognised latter. and safeguarded by the ECHR. However,

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OPINION OF MR COSMAS — JOINED CASES C-174/98 P AND C-189/98 P

21 — See Baustablgewebe (paragraph 29) cited above in foot- 22 — Paragraph 48 of the contested judgment. Emphasis added. note 17. 23 — Paragraph 47 of the contested judgment.

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35. On the other hand, it should be noted groups) or by the parties themselves. 24 that, contrary to the appellant's assertions, Accordingly, insofar as the European Court that institutional guarantee is correctly of Human Rights has acknowledged that as linked to the requirement of an 'indepen- regards the independence of the tribunal dent tribunal'. Admittedly, it would be within the meaning of Article 6 of the extremely difficult to imagine a completely ECHR maintaining the appearance of 'independent' court which was not compe- independence is particularly important, 25 tent to apply its own rules of procedure it must be acknowledged that banning (national rules of procedure in the case of interference in the court's work also con- national courts) or rule equally freely on tains a risk of interference or apparent procedural matters of a general nature and intervention in that work. on the confidentiality of procedural docu- ments in particular.

24 — See, for instance, European Court of Human Rights Stran Creek Refineries and Stratis Abdreadis [1994] Series A, No 301-B, paragraphs 49 and 50. See also, inter alia, from the theoretical point of view, Tulkens, E, 'La notion européenne de tribunal indépendant et impartial. La In keeping with the spirit of the ECHR, the situation en Belgique', Revue de science criminelle et de independence of the tribunal means above droit pénal comparé, 1990, p. 667 and, in particular, page 680. all ensuring, by means of structural, func- 25 — See, for instance, European Court of Human Rights tional and personal guarantees, that there is Sramek [1984] Series A, No 84 (paragraph 42); Belilos [1988] Series A, No 132, paragraphs 66 and 67; and no interference in the exercise of the court's hangborger [1989] Series A, No 155, paragraph 32. See also, inter alia, from the theoretical point of view, duties by the executive, the legislature or Macdonald, R. St. J-, Matscher, F., and Petzold, H., (edited any other authority (political, economic, by), The European System for the Protection of Human Rights, Martinus Nijhoff Publishers, Dordrecht — Bos- social, cultural or any other such pressure ton — London, 1993, p. 397.

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OPINION OF M R COSMAS — JOINED CASES C-174/98 P AND C-189/98 P

the ECHR. It amounts to an embellished interpretation of the scope of that principle which the Court and the Court of First Instance are able to make as the ECHR is not their only source of inspiration for 26 — At this point, it should be noted that the connection between procedural autonomy and judicial independence developing the general principles of Com- also constitutes an institutional guarantee for the protec- tion of the parties' interests (see above, paragraph 34 of munity law. this Opinion). That interweaving of the safeguarding of the individual interests of the parties with the protection of procedural autonomy and judicial independence is linked to the establishment of a general principle which could be referred to as the principle of the inviolability of 'the particular space' — after the example of the inviolability of private life — wherein judicial proceedings take place. The Court of First Instance made a similar ruling in Case T-174/95 Svenska Journalistförbundet [1998] ECR II-2289, paragraphs 135 and 136, holding that: 'Under the rules which govern procedure in cases before the Court of First Instance, parties are entitled to protection against the misuse of pleadings and evidence. Thus, in accordance with the third subparagraph of Article 5(3) of the Instructions to the Registrar of 3 March 1994 (OJ 1994 L 78, p. 32), no third party, private or public, may have access to the case-file or to the procedural documents without the express authorisation of the President, after the parties have been heard. Moreover, in

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40. The Kingdom of the Netherlands con- tends that the Court of First Instance was mistaken in deducing from the principle of procedural autonomy that the author of a document drafted for a particular court procedure is not free to allow access to that document on the grounds that such access, at least while the procedure in question is pending, is contrary to the public interest. According to the Kingdom of the Nether- 39. The Kingdom of the Netherlands con- lands, the principle of procedural auton- siders that the interpretation of the system omy, as defined in the Court's case-law laid down by Decision 94/90 adopted by which the Court of First Instance has the Court of First Instance is in principle clearly relied on, concerns the manner in correct. 27 However, it considers that the which directly effective provisions of Com- provisions of that decision were disregar- munity law are applied by national courts ded when the above correct interpretation in their national legal order and means that was applied to the exception relating to 'the the course of proceedings before the protection of the public interest (court national court is determined exclusively proceedings)'. The relevant plea contains by national law subject to certain condi- five distinct limbs: 28 the first limb refers to tions. 29 However, according to the King- the theoretical basis of the exception in dom of the Netherlands, in the present case question and, in particular, the principle of the only question raised is whether the the 'procedural autonomy' of the national Commission is obliged to allow access to its courts (a); the second, third and fourth own documents, which has nothing to do limbs refer to the criterion of application with the obligations of the national court and the scope of interpretation of the above exception (b); the fifth limb refers to the implications of that interpretation for the 29 — The Kingdom of the Netherlands refers specifically to Cases 33/76 Rewe [1976] ECR 1989, paragraph 5; uniform application of Community law (c). C-45/76 Comet [1976] ECR 2043, paragraphs 12 to 16; C-68/79 Just [1980] ECR 501, paragraph 25; C-199/82 San Giorgio [1983] ECR 3595; C-331/85, C-376/85 and C-378/85 Bianco and Girard [1988] ECR 1099, para- graph 12; C-104/86 Commission v Italy [1988] 27 — The Kingdom of the Netherlands, one of the appellants, ECR 1799, paragraph 7; C-123/87 and C-330/87 Jeune- refers specifically to the major premise formulated in homme and EGI [1988] ECR 4517, paragraph 17; paragraphs 41 to 43 of the contested judgment. C-96/91 Commission v Spain [19921 ECR I-3789, para- 28 — As already noted, the first ground of appeal is common to graph 12; C-6/90 and C-9/90 Francovich and Others both the parallel joined appeals. For practical reasons, I [1991] ECR I-5357, paragraph 12; C-312/93 Peterbroeck will base myself on the systematic presentation of that [1995] ECR I-4599, paragraph 12; C-430/93 and ground of appeal submitted by the Kingdom of the C-431/93 Van Schijndel and Van Veen [1995] Netherlands (Case C-174/89) noting, where necessary, ECR I-4705, paragraph 17; C-212/94 FMC and Others the submissions and arguments raised in Mr van der Wal's [1996] ECR I-389, paragraph 71; and C-188/95 Fantask appeal (Case C-189/98 P). and Others [1997] ECR I-6783.

45. According to the Commission, the first limb of the plea is based on a mistaken 42. Moreover, according to the Kingdom of interpretation of the Court of First In- the Netherlands, the Court of First Instance stance's use of the term 'principle of has not undertaken any examination to procedural autonomy'. verify whether the grant of access to the documents in question could have a sub- stantial influence over the procedural autonomy of the national court. In parti- cular, it did not undertake the examination necessary to verify whether the national court allows access to information in the 46. The Commission considers that the file under the national procedure and Kingdom of the Netherlands is mistaken whether, in view of the decisive factor of in contending that, when the Court of First national law, the Commission was able to Instance refers to the above principle, it is authorise such access. referring to the Court of Justice's judgment in REWE, 33 since that case-law is not mentioned in the written or oral procedure before the Court of First Instance or in the 30 — The Kingdom of the Netherlands refers specifically to paragraph 48 of the contested judgment. contested judgment. On the contrary, the 31 — The appellant refers to paragraph 50 of the contested judgment. 32 — The appellant refers to paragraph 51 of the contested 33 — Cited above in footnote 29. judgment. I-20

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Commission considers that the reasoning the national court. Instead of leaving the adopted by the Court of First Instance is national court to reply, the Commission, completely consistent with the case-law subject to review by the Court of First cited before it by the Commission 34 to Instance, would have to substitute itself for the effect that the national court has the national court and reach a decision on exclusive power to determine, on the basis the basis of its own interpretation of of national procedural law, whether, at national law. Accordingly, the Court of what point and under what circumstances First Instance was correct in ruling that the Commission's reply may be disclosed to such a situation would be incompatible third parties. with respect for the procedural autonomy of national courts.

34 — See, in particular. Cases C-127/73 BRT [1974] ECR 51; C- 35 — See below, point 50 of this Opinion. 60/92 Otto [1993] ECR I-5683 and C-234/89 Delimitis 36 — The Commission refers to paragraph 47 of the contested [1991] ECR I-935. judgment.

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OPINION OF MR COSMAS — JOINED CASES C-174/98 P AND C-189/98 P

In view of the above, I propose that the 37 — The Commission refers to paragraphs 25 and 26 of the Court dismiss the plea of inadmissibility appeal. 38 — See Case C-26/94 P X v Commission [1994] ECR I-4379, submitted by the Commission and examine paragraphs 11 and 12. See also Case C-303/96 P Bernardi that limb of the plea alleging infringement v Parliament [1997] ECR I-1239, paragraph 37, and the references cited therein. of Decision 94/90.

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53. It should be noted at the outset that the 39 — At this point, it should be noted that, at the time material assertion made by the Kingdom of the to the present case, namely before the entry into force of the Treaty of Amsterdam, Decision 94/90 constituted the Netherlands that the Court of First Instance regulatory basis conferring the right of public access to Commission documents. As may be inferred from the was mistaken in relying on the principle of Court's case-law. Decision 94/90 was the Commission's the procedural autonomy of the national response to the European Council's demands for Commu- nity law to reflect the right of citizens, recognised by the courts, which is not concerned with the majority of Member States' legislatures, to have access to documents in the possession of public authorities. Since the question of whether the Commission is Community legislature had not adopted any general obliged to allow access to its own docu- regulation on the right of public access to documents in the possession of the Community institutions, those ments, should be dismissed, since it is based institutions were obliged to take, by virtue of their power of internal organisation, appropriate measures to pro- on a misunderstanding of the principle of cess — and satisfy — requests for access to documents in conformity with the interests of sound administration (see procedural autonomy as employed in the Case C-58/94 Netherlands v C o u n c i l[1996] ECR I-2169, contested judgment. paragraphs 34 to 37 relating to Council Decision 93/731/ EC of 20 December 1993 on public access to Council documents (OJ 1993 L 340, p. 431).

As the Kingdom of the Netherlands itself in control of the procedure in that court, in notes, the reference in the appeal to the other words it is only the court that is case-law in Rewe concerns the procedural competent to rule on any question con- autonomy of Member States in applying cerning the application of the rules of rules of Community law having direct procedure governing the proceedings with- effect. That autonomy derives from the out being subject to — and without there absence of integrated and systematic Com- being any doubt as to whether it is subject munity legislation in the field of procedural to — pressures from third parties. 45 law. 42 That concept of procedural auton- omy is not the same as the concept of the

rather with defining jurisdiction and con- that, based on the arguments developed in ditions for the application of that law. analysing the plea alleging infringement of Consequently, referring explicitly to the the ECHR, M r van der Wal's assertions independence of all courts, the Court of that, on the one hand, the exception in First Instance notes in the contested judg- question in Decision 94/90 is intended ment that the 'courts must be free to apply exclusively to protect the interests of the their own rules of procedure'. 43 Second, parties and, on the other hand, that the the principle of procedural autonomy as notion of an independent tribunal does not employed in the contested judgment refers include the principle of procedural auton- not only to national courts, but to 'both omy must also be dismissed as unfounded.

In any procedure applied in every court, be it a case, as I have already noted, the contested national or Community court. The princi- judgment, far from ignoring the fact that ple of procedural autonomy referred to in the exception in question is intended to the contested judgment is therefore directly protect the interests of the parties, expli- linked to the aim of independence for all citly construes the principle of the proce- courts and implies that every court must be dural autonomy of national and Commu- nity courts as an institutional guarantee of the parties' interests. 46 Likewise, there are 42 — See, for instance, Rewe (paragraph 5) and Fantask (para- graph 39) cited above in footnote 29. 43 — See paragraph 47 (emphasis added). 45 — See above, point 36 of this Opinion. 44 — Paragraphs 47 and 48. 46 — See above, point 34 of this Opinion.

The relevance of the distinction between the two categories of documents is appar- ent from the need to demonstrate an appropriate causal link between disclosure of the documents and infringement of the public interest created by interference with the procedural autonomy of the competent court. Indeed, when, as in the material case, the Commission is not party to a specific court case, such interference cannot exist 55. Moreover, I consider that the challenge except in relation to documents connected to the validity of the Court of First with that case. The contribution of the Instance's reasoning on the ground, on the strict formal criterion governing the draft- one hand, of the distinction drawn in ing of documents for the sole purpose of a paragraph 50 of the contested judgment particular court case justifies, on the one between documents drafted for the sole hand, those documents being considered as purposes of a particular court case and contents of the file directly connected with other documents which exist independently a specific court case and, on the other hand, of such proceedings, and, on the other making possible disclosure of those docu- hand, of the reference to the fact that the ments dependent on the decision of the Commission is obliged to refuse access to competent court hearing the particular the documents in question when court case. By contrast, the same does not apply proceedings are pending, should be dis- to documents which exist independently of missed as ineffective. Since it is clear that any court proceedings. It is logical to all the documents in question in the present assume that such documents do not refer case were drafted for specific proceedings to the court case, but reiterate — by way of to which the Commission was not party confirming matters of fact — information and which were pending at the time when to which those concerned can gain access the material facts of the case occurred, for from other sources. Accordingly, even if the the purpose of corroborating the legal and documents in question constitute or con- logical validity of the Court of First Instan- stituted information in a case-file, it must- ce's judicial reasoning it is sufficient to note be assumed that they are not directly that the interpretation adopted in the connected with the procedural documents contested judgment applies mainly to docu- whose confidentiality depends on the com- ments concerned with questions of law petent court and there is therefore no arising in the context of specific pending reason for them to be covered by the proceedings. exception relating to the protection of the procedural autonomy of that court. If those documents were covered by the exception 47 — Sec above, point 36 of this Opinion. in question, that would clearly amount to

57. In contrast to the assertions of the appellants considered above, the complaint put forward that the Court of First Instance 59. However, I consider that, having regard did not undertake the examination required to the spirit of Decision 94/90 and the need pursuant to Decision 94/90 is sufficient to to safeguard its effectiveness, the Commis- cast doubts on the correctness of the sion, under the control of the Court of First contested judgment. Instance, was obliged not to make an independent assessment as to whether, pursuant to national law, it had the right 48 — As regards such an extension, see Article 3(2) of Council to disclose the documents in question, but Directive 90/313/EEC of 7 June 1990 on the freedom of was bound to make every effort to ascer- access to information on the environment (OJ 1990 L 158, p. 56). This provides as follows: 'Member States may provide for a request for such information to be refused where it affects: ... matters which are, or have been, sub judice ...'. 49 — See above, point 36 of this Opinion.

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50 — According to the Kingdom of the Netherlands, having noted the views of the national court, the Commission must independently consider whether the refusal to allow access can be justified on the grounds of the public interest (see, on this point, its statement in intervention submitted 51 — See below, point 77 of this Opinion. at first instance, paragraph 42). I consider that that position is not correct because acceptance of the Commis- 52 — See also below, point 92 of this Opinion. sion's independence to decide in such manner would be 55 — On the connection between the right of access to contrary to the principle of the procedural autonomy of Community institution documents and the principle of the national court. In my opinion, the Commission should sound administration, see Netherlands v Council (para- be bound by the reply of the national court. graph 37), cited above in footnote 39.

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those courts for the purpose of implement- (2) Second, third and fourth limbs ing Articles 85 (now Article 81 EC) and 86 (now Article 82 EC) of the EC Treaty.

(a) Arguments of the parties

54 — This omission may have a crucial effect on the operative part of the judgment. If the Court of First Instance had 55 — In this context, M r van der Wal observes that, in relation undertaken that examination, it may have realised that the to Decision 94/90, the Court of First Instance should have Commission had not complied with its relevant obligations noted that the Commission failed to give the reason why with regard to the grounds for its refusal; in that case, the access was denied in the case of each contested document, Court of First instance would have been obliged to rule the having regard to the information contained therein, Commission's decision invalid. See below, point 99 of this regarded as essential in paragraph 43 of the contested Opinion. judgment.

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pending. The implication of the above ceedings)', state that in order to guarantee interpretation is that access is not possible that protection only the nature of the to a whole category of documents which information need be considered. The rea- are thereby excluded from the scope of sons for refusing the access requested are application of Decision 94/90 without any dealt with sufficiently in paragraphs 45 to basis in law. For that reason, the interpre- 52 of the contested judgment. In particular,

64. In the fourth limb of the first ground of not examined separately but because it docs appeal, the Kingdom of the Netherlands not accept the major premiss of the Court contends that the exceptions to the general of First Instance's reasoning in para- principle of access to documents in the graphs 45 to 52 of the contested judgment. possession of the Commission as laid down by Decision 94/90 must be strictly con- strued and applied. The broad interpreta- tion given by the Court of First Instance, whereby all documents drafted by the Commission for a particular court case are excluded from the scope of application of that principle regardless of their con- 66. As regards the third limb of the first tents, is incompatible with Decision 94/90 ground of appeal, the Commission, which and undermines its purpose insofar as it raises the issue of the admissibility of the makes it impossible to achieve the specific relevant assertions made by the Kingdom of goal of transparency in relations between the Netherlands, 58also notes that the the Commission and the national court. 56 interpretation adopted by the Court of First Instance does not exclude the docu- ments in question from the scope of 56 — In this context, Mr van der Wal notes that, insofar as the application of Decision 94/90, but simply Court of First Instance's assessment means that the requirement of a 'justification for each document' may means that those documents are subject to be construed as a 'justification for each category of documents', that position is incompatible with the pre- vious case-law of the Court of First Instance which consistently held that the exceptions invoked by the Commission and the obligation incumbent on it to justify 57 — See below, point 68 of this Opinion. those exceptions must be strictly construed. 58 — See below, point 69 of tins Opinion.

one of the exceptions to that decision in and the legal arguments in support of the compliance with which the Commission is form of order which the appellant requests obliged to refuse access thereto. the Court to grant... an appeal must indicate precisely the contested elements of the judgment which it is requested to have set aside and also the legal arguments 67. As regards the fourth limb of the first which specifically support that request'. 59 ground of appeal, the Commission notes that the interpretation placed on the excep- tion in question by the Court of First Instance is correct. It is quite clear from I consider that the manner in which M r van the wording of Decision 94/90 that, for the der Wal makes his complaint on this point Commission to be obliged to refuse access is not contrary to the above case-law. The to a document, it is sufficient that disclo- appellant refers to paragraph 43 of the sure of that document be likely to under- contested judgment in which, as he empha- mine the public interest particularly in the sises, the Court of First Instance acknowl- case of court proceedings. edges that the Commission must examine the contents of each document separately. Following on from the above observation, the appellant submits that at no point in the contested judgment did the Court of First (b) My opinion Instance check whether the Commission actually carried out that examination. In view of the negative character of that assertion alone, it would be difficult to argue convincingly that the appellant ought (i) Admissibility to have indicated precisely the paragraph- s in the judgment where the Court of First Instance had failed to make, according to 68. The Commission maintains that him, the necessary check. M r van der Wal does not specify the p a r a g r a p h s of the contested judgment against which his assertion is made, namely that the Court of First Instance did not carry out the necessary separate examina- In light of the above, I propose that the tion of each document nor request the Court consider M r van der Wal's complaint Commission to do so in order to ascertain admissible and proceed to examine whether whether disclosure of the documents was it is well founded. likely to undermine the public interest. Accordingly, pursuant to the Court's case- law, this limb of his plea must be regarded as inadmissible. 69. The Commission also challenges the admissibility of the third limb of the first ground of appeal on the basis that the

Kingdom of the Netherlands reiterates the that the Commission's interpretation of the arguments developed in paragraphs 16 to exception to Decision 94/90 had the effect 22 of the statement in intervention sub- of excluding a whole category of docu- mitted to the Court of First Instance. ments from the scope of application of that decision. In its appeal (paragraph 18), the Kingdom of the Netherlands, noting that there is a similar mistaken interpretation of the exception in question, repeats the same According to the abovementioned case-law legal argument, but explicitly directs it at of the Court, an appeal which merely the contested judgment (particularly repeats or reproduces word for word the against paragraph 50 of that judgment). pleas in law and arguments previously Regardless of the similarity of the two submitted to the Court of First Instance, arguments, the argument formulated in the without indicating precisely the contested appeal (in the third limb of the second elements of the judgment and also the legal ground of appeal) makes adequate refer- arguments specifically advanced in support ence to the contested elements of the of the appeal, is inadmissible. 60 Such an judgment. Moreover, as part of a systema- appeal amounts in reality to no more than a tic interpretation, that argument must, on request for reexamination of the written the one hand, be regarded as inseparable pleadings submitted to the Court of First from the arguments presented in the Instance which, pursuant to Article 49 of remaining limbs of the same plea (broad the EC Statute of the Court of Justice, the interpretation and scope of application of Court of Justice does not have jurisdiction the exception in question).

In that assertion together with other asser- tions submitted by the appellants raise light of the above two observations, I questions which must be examined in the consider that it must be accepted that, in course of the appeal proceedings. any event, examination of this argument, viewed as part of a wider ground of appeal, does not ultimately entail a mere reexami- nation of the written pleadings submitted to the Court of First Instance. For this Before the Court of First Instance, the reason, I propose that the Court dismiss Kingdom of the Netherlands maintained the plea of inadmissibility submitted by the Commission and examine whether the

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O P I N I O N OF M R COSMAS — JOINED CASES C-174/98 P AND C-189/98 P

It is, of course, obvious that tion of the public interest (court proceed disclosure will frequently entail a risk of ings)'. Regardless of the manner of pre undermining the public interest because of sentation of the appellants' various argu the contents and nature of the information ments, the failure by the Court of First contained in the documents in question. 62 Instance in its interpretation of Decision However, in view of the particular circum- 94/90 to recognise its obligation to examine whether the Commission had made every possible effort to ascertain the opinion of 62 — The Kingdom of the Netherlands notes that, in the major premise of the reasoning adopted in the contested judg the national court may result in the con ment (paragraph 43), the Court of First Instance admits that the Commission must consider in respect of each tested judgment being set aside. document requested whether, in the light of the informa tion contained therein, disclosure is in fact likely to undermine one of the facets of public interest protected. With regard to that observation, it is worth noting that although in some language versions there is reference to information at the disposal of the Commission (in Greek:

Since, on the particular question of the Commission's above- mentioned assessment, the conclusion arrived at by the particular line of reasoning in the contested judgment 72. According to the wording of the provi could be correct on the basis of other grounds in law — sion of Decision 94/90 in question, the specifically, application of the general criterion in respect of the assessment of the act of disclosure, specified ad hoc by the criterion of recourse to information to which the Commission normally has access — the possible argument concerning the existence of contradictory grounds must be

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NUTHERLANDS AND VAN DER WAL V COMMISSION

stances in each individual case, there is disclosure of the documents by the Com- nothing to preclude the risk's being due to mission would entail, there was no reason other factors such as the reason why the for any further examination of those docu- documents were drafted and the identity of ments nor, a fortiori, for producing them their recipient. Moreover, such factors before the Court of First Instance. On the frequently help those interpreting the docu- contrary, to impose an obligation to carry ments in question to make an initial out a further examination (for example, judgment as to their contents. with regard to the specific contents of the documents, as to whether the conduct of the court proceedings was likely to be affected) would probably put the Commis- sion and the Court of First Instance at risk of interfering in the work of the national court. 64

63 — As regards the mandatory nature of the specific category of exceptions, see above, point 51 of this Opinion. 64 — See above, point 58 of this Opinion.

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OPINION OF MR COSMAS — JOINED CASES C-174/98 P AND C-189/98 P

tive. The same would occur in the event of parency in relations between the Commis- any other exception being applied in sion and national courts. What does exist is respect of, for example, a series of docu- the principle of transparency embodied in ments each of which contained business the right of access to the Commission's secrets. Does the reference in the major archives. That right is governed by Deci- premise of the reasoning, and in the minor sion 94/90 which, as previously explained, premise applied to each document sepa- introduces an exception to the principle of rately, to the fact that access is denied in transparency for the purpose of protecting respect of every document containing busi- the procedural autonomy of national and ness secrets constitute an unwarranted Community courts. In the national legal exclusion of an entire category of docu- systems there probably exists a specific ments from the scope of application of objective of transparency in relation to Decision 94/90, or is it merely a practical proceedings before the national courts. presentation of a common interpretation However, in the absence of Community and application of that corresponding legislation on the matter and in view of the exception in cases which have been exam- principle of the procedural autonomy of the ined separately and which obviously share Member States, investigation and consid-

76. Moreover, the argument that the inter- cedure for guaranteeing greater transpar- pretation and application of the exception ency for third parties would come within in question followed by the Court of First the regulatory scope of the principle of the procedural autonomy of the Member States and the principle of the procedural auton- 65 — As regards the obligation to construe the exceptions to omy of the national and Community Decision 94/90 strictly, as referred to in paragraph 41 of the contested judgment itself, see above, point 51 of this courts. Consequently, reliance on that

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NETHERLANDS AND VAN DER WAL V COMMISSION

'specific objective' to challenge the interpreta- contested judgment itself refers 6 9and tion adopted in the contested judgment which the appellants contend has been would be pointless. Finally, as regards infringed by the Court of First Instance, relations between the Commission and the was not properly observed by the Court of national courts for the purpose of imple- First Instance when it reviewed the Com- menting Articles 85 and 86 of the EC mission's action. In particular, in order to Treaty, it is worth remembering that, in establish operational efficiency and not the present case, they are governed by compromise the essential protection of the the Court's case-law 6 6 and Notice right of access to Commission documents 93/C 39/05. 67 However, neither of these conferred in Decision 94/90, strict applica- appear to establish a 'specific objective' of tion of the exception in question implies transparency in the relations concerned. On that the Commission is obliged to take the contrary, the fact that, on the one hand, steps which, without going beyond the the question of the form and conditions for limits of its duties, will minimise the scope achieving cooperation between the Com- for refusing disclosure of documents, mission and the national courts is consid- thereby effectively reducing to the absolute ered in the context of national procedural minimum the need to invoke the exception law, 68and, on the other hand, the climate in question and the opportunities for its of confidence and cooperation in good faith application. 70 In the present case, the steps deriving from Article 5 of EC Treaty (now concerned would involve seeking the opi- Article 10 EC) which must exist between nion of the competent national courts on the Commission and national judicial the question of disclosing each separate bodies, would probably make the Commis- document so that, in the event of each sion have reservations about disclosing competent national court giving its consent, documents. the Commission could disclose the docu- ments requested. The Commission was therefore obliged to take every possible step to ascertain such an opinion. In the present case, the range of possible steps,

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OPINION O F M R COSMAS — JOINED CASES C-174/98 P A N D C-189/98 P

which would not go beyond the scope of Commission had not taken the relevant the information to which the Commission steps, it would have been obliged to hold may normally have access in the course of the Commission's contested decision inva- its duties, would include the sending of a lid. question to the national courts with whom the cooperation procedure had already been opened for the purpose of applying Articles 85 and 86 of the EC Treaty. 71

(3) Fifth limb

(a) Arguments of the parties

80. According to the Commission, how- 71 — It is worth noting that the Commission could not be required to provide information not in its possession or ever, the contested judgment in no way create new information for disclosure to interested parties entails the non-uniform application of requesting it. By way of analogy, see the judgment of the European Court of Human Rights in Guerra [1998], Decision 94/90. The Commission must paragraph 53 in which it held that freedom to receive information could not be construed as imposing on a State always refuse to disclose replies addressed positive obligations to collect and disseminate, informa- tion of its own motion. to national courts in the context of the However, when, by addressing questions to the competent decentralised application of competition national courts, the Commission seeks their opinion, it is not obliged, in the material case, to create or obtain the law. The fact that in some Member States information requested. That information is in its posses- courts will allow access to certain docu- sion. What it is required to do is have recourse, as far as possible, to all the information to which it may have access ments and in other Member States they will in order to minimise the need to rely on the exception in question. not has nothing to do with the uniform 72 — See below, point 99 of this Opinion. application of Community law.

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(b) My opinion dant principle of the procedural autonomy of the Member States 75which the King- dom of the Netherlands, in its appeal, 76 refers to as being safeguarded in case-law.

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84. Moreover, according to the appellant, the Court of First Instance concludes that the contested judgment is incomprehensible the principle of procedural autonomy may because the C o u r t of First I n s t a n c e be deduced from the right of every person acknowledges, on the one hand, that the to a fair hearing by an independent and national courts are free to apply their own impartial tribunal. Precise reasoning in rules of procedure concerning the powers relation to the above is all the more of the court, the conduct of the proceedings essential since it was a determinant factor in general and the- confidentiality of the in the legal assessment of the Court of First procedural documents on the file in parti- Instance and was not been relied on by the cular 7 8 and, on the other hand, restricts the parties. principle of the procedural autonomy of the national court to documents drafted by the Commission for specific court proceedings for as long as those proceedings are pend- 86. According to the Commission, the ing. 79 On this last point, the Kingdom of Kingdom of the Netherlands distorts the the Netherlands states that it is difficult to reasoning adopted by the Court of First understand why the procedural autonomy Instance. In the relevant paragraphs of the of the national court is concerned exclu- contested judgment the Court of First sively with certain information on the file, Instance is replying to the applicant's first or why the provisions concerning the argument according to which the exception publication of procedural information relating to court proceedings is concerned relating to national rules of procedure only with proceedings to which the Com- should be excluded once the proceedings mission is party. The Court of First Instance are no longer pending. rejects that complaint (paragraph 49 of the contested judgment) on the basis of the interpretation of Decision 94/90 (para-

If paragraphs 45 and 46 which refer to the 78 — The appellant refers to paragraph 47 of the contested ECHR were dispensed with, the substance judgment. of the contested judgment would remain 79 — The appellant refers to paragraph 51 of the contested judgment. the same.

87. According to the Commission, it is Instance are contradictory or inadequate is important to establish not whether the a question of law which is amenable, as Court of First Instance provided adequate such, to judicial review on appeal. 80 How- grounds for an infringement of Article 6 of ever, the appellants' arguments concerning the ECHR, but whether it provided ade- defects in the grounds of the contested quate grounds for its interpretation of the judgment must be dismissed as ineffective exception concerning the public interest or, or without foundation. better still, whether it provided adequate grounds for dismissing the first plea for annulment submitted to the Court of First Instance by the applicant according to which the above exception mentioned in Decision 94/90 applies solely to proceed- ings to which the Commission is party. In this respect, the Commission considers that the contested judgment is sufficiently clear with regard to the reasoning adopted by the First of all, the arguments concerning the Court of First Instance and that para- failure to provide proper justification with graph 47 is convincing as regards the regard to the need to interpret Article 6 of principle of procedural autonomy which is the ECHR, that article's relationship to the essential to the independence of the courts. principle of the procedural autonomy of national and Community courts, and the infringement of that article must be dis- missed at the outset as ineffective, since they cannot lead to the annulment of the judgment. Even if those arguments were 88. Finally, the Commission repeats the regarded as well-founded, in other words argument that the sections of the contested even if it were considered that, as regards judgment which refer either to documents their formulation, the relevant reasons that exist independently of the proceedings given by the Court of First Instance were or to situations where the proceedings for inappropriate or inadequate, the particular which the documents were drafted have conclusions reached by the Court of First been concluded may be regarded only as Instance in relation to the right enshrined in incidental opinions from which Mr van der Article 6 of the ECHR would in any case, Wal can derive no benefit. as already explained, 81 have to be regarded as legally and logically correct. Accord- ingly, the Court has accepted that, if the grounds of a judgment adopted by the Court of First Instance infringes Commu- nity law, but the operative part of the judgment appears well-founded for other legal reasons, the appeal should be dis- (2) My opinion missed. 82

However, in any case, the appellants' back to my earlier analysis 86 and simply arguments concerning the reasons for the note here that the grounds for applying the reference in the contested judgment to principle of procedural autonomy to docu- Article 6 of the ECHR should be dismissed ments drafted independently of court pro- as unfounded. In particular, as I have ceedings and to proceedings which are no already noted in the context of the general longer pending were not essential for principles of Community law, the Court of resolving the dispute submitted to the First Instance was correct in referring to the Court of First Instance or for supporting above right, which is safeguarded by Arti- the operative part of the contested judg- cle 6 of the ECHR, and in deducing the ment. 8 7 principle of procedural autonomy from that right. 8 3Consequently, the Court of First Instance's interpretation of the scope of the exception in question based on 'the protection of the public interest (court proceedings)', 84 in reply to the plea sub- 9 1 . Finally, as regards the argument that mitted to it, was correctly and adequately the grounds of the contested judgment are reasoned when it stated that '[i]ts scope defective because the C o u r t of First therefore entitles the Commission to rely on Instance did not examine in respect of that exception even when it is not itself every document separately whether the party to the court proceedings which, in the Commission could, having regard to the particular case, justify the protection of the information contained in each document, public interest'. 8 5 Moreover, at no point rely on the protection of the public interest did the Court of First Instance, while to refuse access to those documents, I arguing at the level of the general principles consider that it should be regarded as of Community law, state that there was an ineffective because, as I have already indi- infringement of Article 6 of the ECHR. cated, in paragraph 52 of the contested judgment the Court of First Instance exam- ined, as it was obliged to do, in respect of

unfounded. In support of that view, I refer Court of First Instance's judgment, the defects that other grounds also included in that judgment may contain do not, in any event, affect the operative part of the judgment in question and the plea relied on by the applicant must be dismissed. See, for instance, Case C-35/92 P Parliament v 83 — See above, this Opinion on the first and second grounds of Frederiksen [1993] ECR I-991, paragraph 3 1 . appeal (first limb). 88 — See above, points 71 to 74 of this Opinion. 84 — See paragraph 48 of the contested judgment. 89 — As regards the discrepancies between the different lan- 85 — See paragraph 49 of the contested judgment. guage versions, see above, footnote 62 of this Opinion.

ment of the information contained in the Commission took all necessary and appro- document in question, such a contradiction priate steps in the material case to minimise could not justify setting aside the judgment the need for the above exception to be insofar as, despite the error in the major applied and was also obliged to report the premise of the reasoning relating to the results of that examination. The failure by scope of the information that should be the Court of First Instance to carry out that taken into account, there was no error of examination, which was initially due to the law or logic in the minor premise nor in the mistaken interpretation of Decision 94/90 conclusion arrived at by that reasoning. 9 0 concerning the Commission's obligations when applying the exceptions to freedom of access, also renders the grounds of the contested judgment inadequate. In particu- lar, the Court of First Instance, in examin- ing the contested decision, failed to provide sufficient grounds in law as to why it considered that the Commission cor- rectly — and therefore strictly — applied 92. The grounds of the contested judgment the exception in question. For that reason, are nevertheless mistaken in relation to the the judgment of the Court of First Instance examination which the Court of First should be set aside by reason of defective Instance was obliged to carry out as regards grounds. the application of the exception in question by the Commission. While the Court of First Instance expressly stated that all exceptions must be construed and applied strictly, 91 it did not in general terms construe and apply the exception in ques- tion correctly. Consequently, the Court of D — Infringement of the principle of the First Instance did not undertake the neces- autonomy of the parties and the rights of sary verification and therefore did not the defence establish adequate grounds in law for ultimately reaching the view that the Com- mission's application of the exception in question was appropriate. 92 In particular, given the circumstances of the present case, in order to reply to the assertion submitted (1) Arguments of the parties to it that the Commission wrongly inter- preted and applied the exception in ques- tion based on 'the protection of the public interest (court proceedings)', 93 the Court 9 3 . According to Mr van der Wal, in of First Instance was obliged, as I have paragraphs 45 to 51 of the contested already indicated, to examine whether the judgment the Court of First Instance infringed, on the one hand, the principle of the autonomy of the parties, as that 90 — See the abovementioned relevant case-law, point 89 of this principle is applied in Community law and Opinion. often referred to in the various national 91 — See paragraph 41 or the contested judgment. courts as the principle of judicial neutrality 92 — Sec, in particular, paragraphs 5 1 , 53 and 71 of the or dispositive principle and, on the other contested judgment. 93 — See paragraphs 25 to .3.3 of the contested judgment. hand, the principle of the protection of the

94. The Commission maintains that it is inaccurate to state that the Court of First Instance bases its findings on Article 6 of the ECHR and that it exceeded the confines of the dispute between the parties. The Commission's refusal to allow access to the documents in question, which was based on 95. While it must be generally accepted 'the protection of the public interest (court that the Court of First Instance cannot rule proceedings)' and the consideration that it ultra petita, in the sense that it is restricted was for the national courts alone to deter- in principle by the confines of the dispute as mine, on the basis of their national law, the defined by the parties, it cannot be main- conditions under which those documents tained that that is the situation in the present case. As already demonstrated, the Court of First Instance did not base its 94 — The appellant refers to paragraph 45 of the contested judgment on Article 6 of the ECHR, but on judgment. the interpretation of the exception con- 95 — The appellant refers to paragraphs 25 to 40 of the contested judgment. tained in the Code of Conduct relating to

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96. Moreover, it may be inferred from the ECHR is not a new argument devised by above that the Court of First Instance was the Court of First Instance, but the devel- not obliged to inform the parties of its opment of its reasoning in relation to the intention to refer — in the way it did — to scope of the assertion submitted to it by the Article 6 of the ECHR or request them to applicant. From that fact alone it follows respond accordingly. It is clear that the that, in conformity with the Court's case- Court of First Instance respected the prin- law, there can be no question of the Court ciples of giving both parties a hearing and of First Instance exceeding the scope of the of protecting the rights of the defence, since dispute or ruling ultra petita. 97However, it the parties had the opportunity to present could never be accepted that, in seeking the their arguments concerning the pleas for true meaning of key legal provisions, parti- annulment and claims put forward in the cularly those relied on by the parties context of which the Court of First Instance themselves, the court is bound by the reached its judgment. Moreover, as the arguments of the parties or obliged to Commission correctly noted, the appellant inform them of every argument in law does not explain how his defence before the making up the major premise of his reason- Court of First Instance would have differed

parties". Its task of juris dictio requires it to be able to apply to the facts put before it by the parties the relevant rules of law for the solution of the dispute. It cannot confine itself to the arguments put forward by the parties in support of their claims, or it may be forced to base its decision on erroneous legal considerations. 96 — See paragraphs 25 to 33 of the contested judgment. This is why the rules of procedure offer the court the 97 — On this subject, see Case C-252/96 P Parliament v possibility of seeking the best possible solution in various Gutiérrez de Quijano y Lloréns [1998] ECR I-7421, ways while remaining within the framework of the dispute paragraphs 32 to 34. submitted to it'.

97. It should also be noted that there is no question of replacing the grounds of the Finally, it is worth noting that the fact that, Commission decision with the grounds of in applying the exception in question, the the Court of First Instance judgment. The Commission's powers are circum- Commission founded its refusal to allow scribed, 100 precludes the possibility of the access to the documents in question on the grounds being improperly replaced. In exception based on 'the protection of the other words, since there is no doubt that public interest (court proceedings)', inter- the documents in question were drafted for preting that exception as meaning that, specific court proceedings and constitute once as it had forwarded the letters of reply information in the file in those proceedings to the national courts and those letters which are still pending, there can be no became an integral part of the files of cases question of the grounds being improperly pending before those courts, the question of replaced because the Commission has no the publication and/or disclosure of those discretion in the matter, but is obliged to letters was primarily the responsibility of refuse access to those documents; it there- the national court to which each letter was fore cannot be maintained that an assess- addressed. 99 The principle of procedural ment or clarification which is, moreover, autonomy relied on and applied by the theoretical, as to the basis, systematic Court of First Instance in the contested interpretation and purpose of the provision judgment and linked, in the manner already to be applied can improperly provide any a noted, to Article 6 of the ECHR is essen- posteriori justification for the exercise of tially no different to the explanation given such discretionary power. by the Commission, as is also evident from an analysis of the other grounds of appeal. If, despite that, there is any difference between the two explanations, that differ- ence, at the level of legal terminology, does not lie in the ratio, in the regulatory scope of the exception in question or in the manner in which that exception was to be applied having regard to the material facts 98. In light of the above considerations, I of the case, but in the precise definition of am of the opinion that the ground of appeal the theoretical basis of the exception in alleging infringement of the principle of the autonomy of the parties and of the princi- ple of the protection of the rights of the defence should be dismissed as unfounded. 99 — As mentioned in paragraph 68 of the contested judgment, the above explanation, despite the different wording, is essentially repeated in both replies (the letters of 23 Feb- ruary 1996 and 29 March 1996) addressed to Mr van der Wal. 100 — On this subject, see above, point 51 of this Opinion.

100. Once the contested judgment is set aside, the Court of First Instance, having 99. As I have already noted, the error in the regard to the information in the case-file, contested judgment consists in the fact that should consider whether the Commission the Court of First Instance initially made a actually took all necessary and appropriate mistake in interpreting Decision 94/90 with steps to certain the opinion of the compe- respect to the Commission's obligations tent national courts regarding the question when applying the exception based on of the disclosure of the documents in 'the protection of the public interest (court question. proceedings)'. Consequently, the Court of First Instance subsequently failed to ascer- tain as was necessary that those obligations had been met, by examining the grounds given for the Commission's contested refu- sal to allow access to the documents in 101. Since, therefore this case has not yet question. In particular, the Court of First been settled on its merits, it should, pur- Instance did not examine whether the suant to Article 54 of the EC Statute of the Commission had taken all necessary and Court of Justice, be referred back to the appropriate steps to obtain the opinion of Court of First Instance for judgment on the the competent national courts and thereby substance. minimise the need for the above exception to be applied. The above error resulted in the contested judgment being based on defective grounds. In reviewing the dispu- ted act, the Court of First Instance did not provide adequate grounds in law for its finding that the Commission had applied the exception in question correctly — and VII — Costs therefore strictly. The above defect in the contested judgment is likely to have a decisive effect on the operative part of the judgment. If the Court of First Instance had 102. Under the first paragraph of Arti- duly carried out the relevant examination, cle 122 of the Rules of Procedure of the it would probably have established that the Court of Justice, the Court is to make a Commission had not fulfilled its obliga- decision as to costs 'where the appeal is tions, had not applied the exception in unfounded or where the appeal is well question strictly and therefore had not founded and the Court itself gives the final correctly explained the grounds for its judgment in the case'. Since, in the present refusal; in that case, the Court of First case, neither of those situations applies, I Instance would have been obliged to set propose that the Court reserve judgment as aside the Commission's refusal. For that to costs.

(3) reserve judgment as to costs.

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