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General principle of access to documents 7. As regards the provisions establishing within the meaning of the Code of Conduct exceptions in the true sense, they are worded as follows:

5. The general principle is defined as fol- lows: 'The institutions will refuse access to any document whose disclosure could under- mine:

'The public will have the widest possible access to documents held 8 by the Commis- sion...'. 9 — the protection of the public interest (public security, international relations, monetary stability, court proceedings, inspections and investigations),

Limits of the general principle of access to documents within the meaning of the Code of Conduct — the protection of the individual and of privacy,

'The relevant Director-General or Head of Department, the Director designated for the purpose in the Secretariat-General or an official acting on their behalf shall inform the applicant in writing, within one month, whether the application is granted or whether he intends to refuse access. In the I I — Facts and procedure latter case the applicant shall also be notified that he has one month in which to apply to the Secretary-General of the Commission for review of the intention to refuse access, failing which he shall be deemed to have withdrawn his initial application'. 10. Imports of beef from third countries into the European Community are subject, as a rule, to customs duty and additional import levies. Under the General Agree- ment on Tariffs and Trade (GATT), certain quantities of high quality beef ('Hilton Beef') from the Argentine Republic can be 9. Subsequently, the Commission also imported free of additional import levies. adopted Communication 94/C 67/03 on In those circumstances, only the applicable improved access to documents, specifying common customs tariff is payable. Entitle- the criteria for implementation of Decision ment to that exemption is subject to 94/90. 11 The communication states that presentation of certificates of authenticity 'anyone may... ask for access to any issued by the Argentine authorities. unpublished Commission document,

12 — Seventh paragraph. 10 — Twelfth paragraph. 13 — Tenth paragraph. 11 — OJ 1994 C 67, p. 5, hereinafter 'the 1994 communication'. 14 — Eleventh paragraph.

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16. Interporc therefore brought an action, 18. The decision of 23 April 1998 has given and subsequently another, before the Court rise to fresh proceedings. The appellant of First Instance. disputes the merits of that decision. In so far as concerns us, the decision states inter alia that:

First, the appellant jointly with two other German firms brought an action on 12 April 1996 for annulment of the 'The documents you have requested may be decision of 26 January 1996. The Court placed in the following categories: of First Instance annulled that decision. 16

1. Documents emanating from the Then, by application lodged at the Registry Member States and the Argentine auth- of the Court of First Instance on 9 August orities 1996, the appellant brought a second action, this time for annulment of the Commission's decision of 29 May 1996 confirming its refusal to allow the appellant access to certain of its documents. By judgment of 6 February 1998 the Court — the declarations of the Member States of First Instance held that the statement of of quantities of Hilton Beef imported reasons in the decision of 29 May 1996 was from Argentina between 1985 and inadequate and annulled that decision. 17 1992;

17. Implementing the judgment in Inter- — the declarations of the Argentine auth- porc I, the Commission sent the appellant a orities of quantities of Hilton Beef fresh decision dated 23 April 1998 con- exported to the Community in the taining an identical conclusion to that of same period; the annulled decision of 29 May 1996, but stating different reasons.

— the documents of the Commission relating to the designation of the bodies responsible for issuing certificates of authenticity; — the minutes of the meetings of the group of experts from the Member States held on 2 October and 4 December 1995.

— the documents relating to the agree- ment on the opening of the "Hilton" quota, the views of DG VI, views of other departments, communications sent to the Argentine authorities; As regards the documents emanating from the Member States and the Argentine auth- orities, I would advise you to request a copy directly from those Member States and from the authorities concerned. Whilst the Code of Conduct provides that "the — the documents relating to the agree- public will have the widest possible access ment concluded between the Commu- to documents held by the Commission and nity and Argentina concerning a reduc- the Council", the fifth paragraph provides I - 2134

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that "where the document held by an 94/90, second, on Article 176 of the EC institution was written by a natural or Treaty (now Article 233 EC) in conjunction legal person, a Member State, another with the Interporc I judgment and, third, Community institution or body or any on Article 190 of the EC Treaty (now other national or international body, the Article 253 EC). application must be sent direct to the author". The Commission can therefore in no circumstances be accused of an abuse of rights; it is merely applying its decision of 8 February 1994 governing the implemen- tation of the Code of Conduct'. 18

22. The Court of First Instance annulled the decision to refuse access on the basis of the first plea, and did not examine the two other pleas. It found that the Commission had misapplied the exception relating to 19. An action was brought before the the protection of the public interest. Court of First Instance on 9 June 1998 for annulment of that decision. The Court delivered the contested judgment, the sub- ject-matter of this appeal.

III— The contested judgment 54 First of all, the various stages of the administrative procedure should be recapitulated. By letter of 23 February 1996 the applicant requested access to certain documents relating to the con- 25. The Court of First Instance sets out as trol procedure for imports of Hilton follows the pleas raised before it by Inter- Beef, including the documents at issue. porc: By letters of 22 and 25 March 1996, the Directors-General of DG VI and XXI rejected the applications for access, citing the exception based on the protection of the public interest (international relations), the author- 'The applicant relies on three pleas alleging, ship rule, the exception based on the first, the unlawfulness of the contested protection of the public interest (in- decision in so far as it is based on the spections and investigations) and that authorship rule, second, infringement of based on the protection of the individ- Decision 94/90 and the Code of Conduct ual and of privacy. By letter of and, third, infringement of Article 190 of 27 March 1996 to the Secretary-Gen- the Treaty'. 19 eral of the Commission, the applicant's legal representative contested those refusals and submitted a confirmatory application. By letter of 29 May 1996, the Secretary-General rejected the con- firmatory application, citing the excep- 26. After analysing those three pleas in tion based on the protection of the turn, the Court of First Instance held that it public interest (court proceedings). By should not annul the contested decision as its judgment in Interporc I, the Court regards the documents emanating from of First Instance held that the decision Member States or the Argentine authorities of 29 May 1996 was inadequately and stated as follows: reasoned and annulled it. In implemen- tation of the judgment in Interporc I, the Secretary-General again rejected the confirmatory application citing not only the exception based on the protection of the public interest (court 'The plea alleging the unlawfulness of the proceedings) but also the authorship contested decision in so far as it is based on rule. the authorship rule

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67 As regards the interpretation of the 70 At the hearing, the Commission authorship rule, it should be borne in acknowledged that the application of mind, first, that Declaration No 17 and the authorship rule might give rise to the Code of Conduct lay down the difficulty where there is some doubt as general principle that the public should to the authorship of a document. It is in have the greatest possible access to precisely such cases that it is important documents held by the Commission to construe and apply the authorship and the Council and, second, that rule strictly. Decision 94/90 is a measure conferring on citizens the right of access to docu- ments held by the Commission (WWF UK v Commission, cited above, para- graph 55).

71 In the light of the foregoing observa- tions, the Court must determine whether the authorship rule is appli- 68 Next, it is important to note that where cable to the five types of documents a general principle is established and emanating from the Member States or exceptions to that principle are laid the Argentine authorities mentioned in down, those exceptions must be con- the contested decision. strued and applied strictly, so as not to frustrate the application of the general principle (WWF UK v Commission, cited above, paragraph 56, and Inter- porc I, cited above, paragraph 49).

73 It is clear, on examination of the five 78 In the present case, in the contested types of documents, that their authors decision the Commission referred... to are either the Member States or the the authorship rule and informed the Argentine authorities. applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was 74 It follows that the Commission has thus in a position to know the justifi- applied the authorship rule correctly in cation for the contested measure and taking the view that it was not required the Court of First Instance is in a to grant access to those documents. It position to exercise its power to review cannot, therefore, have committed an the legality of that decision. Accord- abuse of rights. Accordingly, the appli- ingly, the applicant is not justified in cant's plea alleging infringement of maintaining that a more specific state- Decision 94/90 and the Code of Con- ment of reasons was required (see duct must be dismissed as unfounded. Rothmans International v Commis- sion, cited above, paragraph 37).

The plea alleging infringement of Article 190 of the Treaty 79 It follows that this plea must be dismissed. Accordingly, the contested decision should not be annulled in so far as it relates to the documents emanating from the Member States or the Argentine authorities.'

77 According to consistent case-law, the obligation to state reasons, laid down IV — The appeal in Article 190 of the Treaty, means that the reasoning of the Community auth- ority which adopted the contested measure must be shown clearly and unequivocally so as to enable the 27. By this appeal, Interporc requests the persons concerned to ascertain the Court to annul that part of the contested reasons for the measure in order to judgment which disallows its claims. The protect their rights and the Community appellant also invites the Court to rule on judicature to exercise its power of the annulment of the contested decision of review (WWF UK v Commission, cited 23 April 1998 and to order the Commis- above, paragraph 66). sion to pay the costs.

1. Inadmissibility of the application for 30. There are three limbs to its second plea. annulment of the contested decision of As its principal claim, the appellant asserts 23 April 1998 that the Court of First Instance should have declared the authorship rule to be invalid as running counter to the free access to documents which is, in its view, a rule of law of a higher order. In the alternative, it criticises the Court of First Instance for, on 33. The Commission claims that the appel- the one hand, having erred in law in lant is seeking annulment of the decision at interpreting the authorship rule and apply- issue in its 'entirety', 20 without expressly ing it to the instant case and, on the other, excluding from this appeal that part of the for failing to declare the inadequacy, under decision which has already been annulled Article 190 of the Treaty, of the statement by the contested judgment. of reasons for the Commission's decision refusing access.

34. The appellant does in fact request '... 31. In its defence to the appeal, the Com- that this Court see fit to annul entirely 21 mission maintains, as its principal claim, the decision of the Secretary-General of the that the appeal is inadmissible in its enti- Commission of 23 April 1998'. 22 That rety, with the effect that detailed examin- wording may, accordingly, give rise to ation of each plea is unnecessary. It further some confusion. contends, in the alternative, that the appeal is, in any event, unfounded. It also asks the Court to order the appellant to pay the 20 — See response, paragraph 4. 21 — Emphasis added. costs. 22 — See notice of appeal, p. 28.

36. Furthermore, in its reply, 24 the appel- Arguments of the parties lant argues that in asking this Court to 'annul entirely' the contested decision of 23 April 1998, its intention is, quite evidently, to confine its application for annulment to only that part of the decision 39. The Commission contends that the in question which is detrimental to it and appeal does not satisfy the requirements which was not already annulled by the of admissibility set out by the case-law of Court of First Instance. The appellant this Court. states, clearly, that the present action does not concern the legality of the part of the contested decision of 23 April 1998 which the Court of First Instance did annul. 40. As regards the first plea, concerning the unlawfulness of the Commission's examin- ation of the request for access to docu- ments, the appellant confines itself, accord- ing to the Commission, to reiterating 37. The Commission's argument is there- arguments already put before the Court of fore not sustainable. First Instance. In the view of the Commis- sion, it does not advance any real demon- stration of the law, preferring to make vague, peremptory statements. It fails, the Commission submits, to explain its reason- ing sufficiently. 38. I am accordingly of the view that the argument that the application for annul- ment of the contested decision of 23 April 1998 is inadmissible because it referred to 41. In its reply, the appellant contends that 23 — Ibid., p. 6. the Commission's thesis restricts dispro- 24 — Page 2. portionately the circumstances in which an

43. In connection with the first limb, the Opinion Commission asserts, furthermore, that the appellant is submitting observations for the first time before this Court, when it already could have done so before the Court of First Instance. The appellant states that it is not always possible to obtain the docu- ments sought from third party authors. The 45. Certain principles governing the parties requesting them, it asserts, admissibility of appeals, in particular as encounter difficulties caused, in certain regards the extent of the jurisdiction of this Member States, by the absence of regu- Court, need to be borne in mind. lations on transparency corresponding to those existing within the Community. The appellant presses its point, advancing the argument that the obstacles are all the greater in relation to requests for access made to third countries. Language issues, 46. According to consistent case-law of this geographical distance and lack of knowl- Court, '[a]rticle 168a of the EC Treaty' (now, after amendment, Article 225 EC), 'and Article 51 of the EC Statute of the 25 — See reply, pp. 3 and 4. Court of Justice state that an appeal is to be I - 2142

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limited to points of law and must be based v Commission, cited above, paragraph on the grounds of lack of competence of the 38)'. 26 Court of First Instance, breach of pro- cedure before it which adversely affects the interests of the appellant or infringement of Community law by the Court of First Instance. Article 112(1)(c) of the Court's Rules of Procedure provides that an appeal must contain the pleas in law and legal arguments relied on. 47. We therefore need to ascertain whether the present case satisfies the requirements of the case-law of this Court on admissi- bility, as set out above.

That requirement is not satisfied by an 49. Likewise in the second plea, the appel- appeal confined to repeating or reproduc- lant addresses explicitly, in support of its ing word for word the pleas in law and argument, specific paragraphs of the con- arguments previously submitted to the tested judgment. Court of First Instance...; in so far as such an appeal does not contain any arguments specifically contesting the judgment 26 — Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraphs 18 to 20. See, in that regard, Case C-338/93 P appealed against, it amounts in reality to De Hoe v Commission [1994] ECR I-819, paragraphs 17 no more than a request for re-examination to 19; Case C-26/94 P X v Commission [1994] ECR I-4379, paragraphs 10 to 13; and Case C-31/95 P Del of the application submitted to the Court of Plato v Commission [1996] ECR I-1443, paragraphs 17 to 20. See, also, Case C-8/95 P New Holland Ford v First Instance, which under Article 49 of Commission [1998] ECR I-3175, paragraphs 22 to 24, the EC Statute the Court of Justice does not and Case C-352/98 P Bergaderm and Goupil v Commis- sion [2000] ECR I-5291, paragraph 35. have jurisdiction to undertake (see, to this 27 — See paragraph 26 of this Opinion. effect, in particular the order in San Marco 28 — See notice of appeal, paragraphs 9 to 12.

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50. According to the case-law of this 53. On that point, citing the first subpara- Court, therefore, the fact that the pleas graph of Article 48(2) of the Rules of and arguments as to the admissibility of an Procedure of the Court of First Instance, action for annulment have already been according to which no new plea in law may raised in the same terms at first instance be introduced in the course of proceedings cannot be a ground for their being inad- unless it is based on matters of law or fact missible in an appeal procedure. 35 In the which come to light in the course of the present appeal, the appellant in fact refers procedure, this Court has held that: precisely to the disputed paragraphs of the contested judgment on the basis of which it develops arguments seeking to show that the Court of First Instance erred in law in its interpretation and application of Com- munity law. 'To allow a party to put forward for the first time before the Court of Justice a plea 29 — See paragraph 26 of this Opinion. in law which it has not raised before the 30 — See notice of appeal, paragraph 13. 31 — See paragraph 26 of this Opinion. Court of First Instance would be to allow it 32 — See notice of appeal, paragraph 22. to bring before the Court, whose jurisdic- 33 — See notice of appeal, paragraph 26. tion in appeals is limited, a case of wider 34 — See paragraph 26 of this Opinion. ambit than that which came before the 35 — See, in that regard, Case C-459/98 P Martínez del Peral Cagigal v Commission [2001] ECR I-135, paragraphs 37 Court of First Instance. In an appeal the and 38, and Case C-41/99 P Sadam Zuccherifici and Court's jurisdiction is thus confined to Others v Council [2001] ECR I-4239, paragraphs 16 to review of the findings of law on the pleas I - 2144

55. In the present case, the Commission seems to be confusing two quite distinct legal notions, namely a 'plea' or 'sub- 57. Accordingly, I believe that the objec- mission' and an 'argument'. According to tion of inadmissibility raised against the the case-law of this Court, '[a] distinction first limb of the second plea must be must be drawn between the introduction of rejected. new submissions in the course of the proceedings and the introduction of certain new arguments'. 38 One can define a 'new submission' as a head of claim which alters the subject-matter of the application. An 58. As regards the third limb, the Commis- 'argument', conversely, merely develops or sion takes the view, in its response to the sets out in greater detail the subject-matter appeal, that it is inextricably bound up of the application. 39 with the admissibility of the preceding limb. Since it maintains that the second limb is inadmissible, it draws the logical 36 — Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, and Deere v conclusion that the third is likewise. Commission, cited above (paragraph 62). See also, on that point, the orders in Case C-437/98 P Infrisa v Commission [1999] ECR I-7145, paragraph 29, and Case C-111/99 P Lech-Stahlwerke v Commission [2001] ECR I-727, para- graph 25. 37 — On that aspect of the case-law of the Court of Justice, see Friden, G-, 'Quelques réflexions sur la recevabilité d'un pourvoi contre un arrêt du Tribunal de première instance', Revue des affaires européennes-, 2000, p. 231, especially 59. I myself am of the view that it is p. 236, and Honorat, E., 'Plaider un pourvoi devant la Cour de justice', Évolution récente au droit judiciaire admissible. Indeed, the Commission con- communautaire, European Institute of Public Adminis- fines itself to pleading its inadmissibility tration, Maastricht, 1994, p. 21. 38 — Case 2/57 Compagnie des Hauts fourneaux de Chasse v without advancing any specific legal argu- High Authority [1957 and 1958] ECR 199; Case C-153/96 P De Rijk v Commission [1997] ECR I-2901, paragraph ments in support of that position. 19, and Case C-220/99 Commission v France [2001] ECR I-5831, paragraph 20. 39 — See, on that issue, my Opinion in the Commission v France case cited above, paragraphs 106 and 107. 40 — See paragraphs 58 to 60 of the contested judgment.

62. The appellant's complaint against the Commission is that, in the wake of the annulment by the Interporc I judgment of 64. The Commission, for its part, considers the decision to refuse access of 29 May that it did carry out a full re-examination of 1996, it adopted a further decision to refuse the request for access. It believes, also, that the request for access based on a new the fact that it chose to base its decision to ground for refusal. The appellant sees in refuse access on a single ground for refusal that practice a material risk of rendering is easily explained by considerations of the Code of Conduct effectively useless. procedural economy. I - 2146

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Assessment that institution under Article 173 of the EC Treaty (now, after amendment, Article 230 EC). 42

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70. Consequently, I propose that the Court duty of transparency, which is a legal should reject the first plea as unfounded. principle rooted in the democratic prin- ciple. Both the Community principle of transparency and free access to documents are, it contends, general principles, which Article 255 EC, 4 4 in conjunction with the 2. The second plea, alleging that the second paragraph of Article 1 and authorship rule is invalid and that Article 6(1) of the Treaty on European Article 190 of the Treaty has been infringed Union, now confirms as being fundamental to the legal order of the Union and the Community. Strict adherence to those principles is, the appellant argues, an indis- pensable component in safeguarding the 71. Analysis of the second plea raises democratic structure and the legitimacy of questions concerning, on the one hand, the exercise of Community sovereignty. the authorship rule (first and second limbs) and, on the other, compliance with the requirement to give a statement of reasons. 74. In its response to the appeal, the Commission defends a markedly different viewpoint. It contends that there is no (a) The authorship rule (first and second general principle of a right of transparency limbs) in Community law. Although there is undeniably a close link between transpar- ency and democracy, that fact is not sufficient, it maintains, to make transpar- ency a legal principle. In consequence, to 72. The appellant's argument in support of restrict the exercise of the right of access the plea for annulment based on the solely to documents written by the Com- authorship rule is in two parts. mission, to the exclusion of documents emanating from the Member States or the Argentine authorities, does not infringe any right of transparency.

76. In Netherlands v Council, cited above, in which this Court considered the lawful- ness of the legal basis for Council Decision 79. Nor can one infer the existence of such 93/731/EC of 20 December 1993 on public a right from the judgment in Council v access to Council documents, 45 the Court Hautala. 49 In that case, the appeal con- stated that 'the domestic legislation of most cerned primarily the right of partial access Member States now enshrines in a general to Council documents, laid down in manner the public's right of access to Decision 93/731. documents held by public authorities as a constitutional or legislative principle'. 46

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contained sensitive information disclosure general principle of access to documents of which could damage public security. 50 within the meaning of the Code of Con- duct.

The Court held that 'Article 4(1) of Decision 93/731 must be interpreted as 82. In that respect, the Code of Conduct meaning that the Council is obliged to enshrines a general principle of access to examine whether partial access should be documents but excludes certain categories granted to the information not covered by of documents from its scope. Thus, where the exceptions'. 51 The Court did not see fit, the Commission holds a document of however, to rule as to 'the existence of a which it is not the author, the Code of "principle of the right to information"'. 52 Conduct provides that the request should be lodged directly with the person or institution in question.

80. Accordingly, I take the view that, as the case-law of this Court currently stands, there is in Community law no fundamental 83. The Code of Conduct therefore right of access to documents among the expressly provides that the authorship rule general principles of law flowing from the is a derogation from the general principle constitutional traditions common to the of the right of access. Member States.

84. In those circumstances, I take the view that the Court of First Instance did not err 81. The right of access to Commission in law by finding that the authorship rule documents is recognised and guaranteed could apply, in the absence of any general by the Code of Conduct, implemented by principle of a right of transparency pre- Decision 94/90. It therefore falls to the venting the Commission from excluding Court of Justice, in this appeal, to interpret documents of which it is not the author the authorship rule in relation to the from the ambit of the Code of Conduct.

87. In its defence to the appeal, the Com- mission acknowledges that the authorship rule is a limitation on the principle estab- 90. Application of the authorship rule can, lished by Decision 94/90. It contends that none the less, lead to abuses. The Commis- the terms of the Code of Conduct are sion could, for example, rely on that authority for a restrictive interpretation of derogation despite the existence of doubt that rule only in so far as there is a doubt as as to the author of the document requested. to the author of the document.

Assessment

91. One should therefore adopt an appli- cation and interpretation of the authorship rule in line with the case-law of this Court. 88. As explained above, the authorship rule is a clear derogation from the general principle of the right of access to docu- 53 — Idot, L., 'La transparence dans les procédures adminis- ments within the meaning of the Code of tratives: l'exemple du droit de la concurrence'. La trans- parence dans l'Union européenne. Mythe ou principe Conduct. juridique?, LGDJ, 1998, p. 121 et seq.

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92. In that regard, as the Court has been at Beef exported to the Community between pains to state recently, the aim pursued by 1985 and 1992, documents relating to the Decision 94/90, besides that of ensuring the designation of the bodies responsible for smooth operation of the Commission in the issuing certificates of authenticity and interests of good administration, is to documents relating to the agreement on provide the public with the widest possible the opening of the 'Hilton' quota. The access to documents held by the Commis- Commission concluded from the foregoing sion, so that any exception to that right of that the appellant should request access to access must be interpreted and applied those documents from the Member States strictly. 54 or the Argentine authorities.

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unless it is clear that the document shall or (b) Compliance with the duty to give shall not be disclosed.' reasons (third limb)

Arguments of the parties 97. In other words, according to the new Community provisions, 56 the authorship rule is no longer an absolute derogation from the right of access to documents, but has become a 'classic' exception subject to the Commission's freedom of interpre- 101. The appellant maintains that the tation. Court of First Instance erred in law when it found that the Commission had correctly discharged its duty to give reasons under Article 190 of the Treaty. It claims that the Court of First Instance was not, on the basis of the statement of reasons for the decision to refuse access, in a position to 98. Under those circumstances, I propose review whether the Commission had also that the Court hold that the Court of First exercised its power to assess, in particular, Instance did not err in law in deciding that whether it was effectively possible to assert the Commission had correctly applied the the right of access to documents in relation authorship rule when it held that it did not to the Member States and the Argentine have to grant access to documents of which authorities. it was not the author.

102. The Commission contends that it did 99. The second part of the second plea comply with the duty to state reasons under should therefore be dismissed as Article 190 of the Treaty. unfounded.

Assessment

108. The Court of First Instance did not, 105. Since we are dealing, specifically, with therefore, err in law by finding that the a request for public access to Commission statement of reasons for the contested documents, the latter has a duty to ascer- decision satisfied the requirements of tain, for each document to which access is Article 190 of the Treaty. The third part requested, whether, in the light of the of the second plea, in so far as it alleges information available to it, disclosure is in there was such an error in law, must fact likely to undermine an interest pro- therefore be held to be unfounded.

(2) order the appellant to pay the costs, in accordance with Article 69(2) of the Rules of Procedure.

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