C-193/01

PITSIORLAS v COUNCIL AND ECB

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 26 September 2002 1

1. The present case arises from the appeal 3. For present purposes it should be noted brought by Mr Pitsiorlas against the order first of all that the first two paragraphs of made on 14 February 2001 (Case T-3/00 Article 2 provide: Pitsiorlas v Council and European Central Bank [2001] ECR II-717) by the Court of First Instance, declaring inadmissible his action for annulment of the Council's decision of 30 July 1999 refusing his application for access to documents relat- ing to the 'Basle/Nyborg agreement' on the '1. An application for access to a Council reinforcement of the European Monetary document shall be sent in writing to the System. Council. It must be made in a sufficiently precise manner and must contain infor- mation enabling the document or docu- ments requested to be identified. Where necessary, the applicant shall be asked for further details.

Relevant law

2. Where the requested document was written by a natural or legal person, a Member State, another Community insti- 2. Council Decision 93/731/EC of tution or body, or any other national or 20 December 1993 on public access to international body, the application must Council documents 2stated the principle of not be sent to the Council, but direct to the access by the public to the Council's author'. documents and laid down the relevant conditions and procedures.

1 — Original language: Italian. 2 - OJ 1 9 9 3 . L .340,p. 43. But this decision was revoked by Council Decisimi 2001/840/EC of 2 9 November 2001 (OJ 2001 L. 313, p. 40) amending the Council's Rules of Procedure following the adoption of Regulation (EC) 4. It should also be noted that, in terms of No 1049/2001 of the European Parliament and of the Article 6, '[a]ny application for access to a Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents Council document shall be examined by the (OJ 2001 1. 145, p. 43). relevant departments of the General Secre-

3. Any decision to reject a confirmatory application, which shall be taken within a month of submission of such application, 2. By letter dated 6 April 1999, received at shall state the grounds on which it is based. the General Secretariat of the Council on The applicant shall be notified of the 9 April 1999, he asked to have access, decision in writing as soon as possible and pursuant to Council Decision 93/731/EC of at the same time informed of the content of 20 December 1993 on public access to Articles 138 e and 173 of the Treaty estab- Council documents (OJ 1993 L 340, p. 43), lishing the European Community [now as amended by Council Decision Articles 195 EC and 230 EC], relating 9 6 / 7 0 5 / E C , ECSC, E u r a t o m , of respectively to the conditions for referral to 6 December 1996 (OJ 1996 L 325, p. 19), the Ombudsman by natural persons and to the "Basle/Nyborg" Agreement on the

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PITSIORLAS v COUNCIL AND ECB

reinforcement of the European Monetary time-limit pursuant to Article 7(5), which System (EMS) endorsed by the Council of provides: Economic and Finance Ministers at their informal meeting at Nyborg, Denmark, on 12 September 1987.

"Exceptionally, the Secretary-General, hav- ing notified the applicant in advance, may 3. In its letter of 11 May 1999, communi- extend by one month the time-limits laid cated to the applicant on 15 May 1999, the down in the first sentence of paragraph 1 General Secretariat of the Council and in paragraph 3". responded in the following terms:

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OPINION OF MR TIZZANO — CASE C-193/01 P

decision"). This decision was drafted in the 9. By letter dated 8 November 1999, following terms: notified to the a p p l i c a n t on 13 November 1999, he was notified that the Governing Council of the ECB had decided not to give him access to the document in question (hereinafter the "ECB decision")' (emphasis "Following a detailed search, we have added). established that the document referred to in your request is the 'Report of the Committee of Governors on the rein- forcement of the EMS', which was published by the Committee of Gov- ernors of the Member States of the 6. For the purpose of these proceedings it EEC at Nyborg on 8 September 1987. should further be noted that, in the letter of 6 July 1999, the applicant's request for access was refused on the following grounds:

Since the rules on the administrative functioning of the EMS have never formed part of Community law, the Council has never been called upon to '... documents from the Committee of take a decision of this nature. Governors of the central banks of the Member States are not covered by the ECB decision (ECB/1998/12) but by Article 23.3 of the Rules of Procedure of the ECB (OJ 1999 L 125, p. 34), which provides that the documents of the Com- Since the document requested in this mittee of Governors shall be freely avail- case was produced by the governors of able after a period of thirty years. There- the central banks, we suggest you fore I regret that I am unable to help you'. address your request directly to the governors of the central banks or to the ECB".

before the Court of First Instance,3 the Mr Pitsiorlas learned of the ECB's final 'Basle/Nyborg agreement' essentially con- refusal to give him access to the 'Basle/ sists of two documents: (i) the 'Report of Nyborg agreement' and that the 'agree- the Committee of Governors on the rein- ment' consisted of 'reports and minutes' forcement of the EMS' (written at Basle on produced not only by the Committee of 8 September 1987), to which the Council's Governors of the central banks of the decision to deny access referred; (ii) a Member States but also by the Monetary report prepared by the Monetary Commit- Committee which, as said earlier, is a tee, a consultative organ of the Council, 4 consultative organ of the Council and, entitled 'Le renforcement du SME — Rap- therefore, responsible for access to the port du Comité monétaire à la réunion documentation concerned. The applicant informelle des ministres des finances, considered that that decision was unlawful Nyborg, le 12 septembre 1987'. It was on and, deducing from the grounds given that the basis of both reports that, at the the Council's decision of 30 July 1999 informal meeting at N y b o r g on (essentially denying the existence of Coun- 12 September 1987, the Council officially cil documents forming part of the 'Basle/ adopted the modifications to be made to Nyborg agreement') was also unlawful, he the arrangements for operation of the SME brought the action of 20 January 2000 agreement of 13 March 1979. 5 against both decisions together, under Article 230 EC, before the Court of First Instance.

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OPINION OF MR TIZZANO — CASE C-193/01 P

the ECB's confirmatory decision — which 12. Regarding the 'excusable error' alleged had been adopted after a lengthy and by the applicant, the Court of First Instance serious delay — that he had in fact under- then observed as follows: stood that the Council had denied him access unlawfully.

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PITSIORLAS v COUNCIL AND FCB

for addressing complaints to the the Court of First Instance; (ii) infringement Ombudsman, and the review by the of the principle of equality of arms; (iii) Court of the legality of acts adopted by misinterpretation of the Council decision; the Council. Therefore a normally (iv) an error in consideration of the facts, diligent individual could have been left resulting in infringement of Article 42 of in no doubt either as to the finality of the Statute of the Court of Justice; (v) this decision, or as to the time-limit for failure to apply the Community case-law bringing proceedings laid down by concerning excusable error or, in the alter- Article 230 EC. native, an excessively strict application of that case-law.

24. Given that the circumstances put for- ward by the applicant cannot be regarded as exceptional circumstances giving rise to 14. In its defence, the Council merely noted an excusable error, the action against the the late submission of the appeal, asking Council decision must be dismissed as the Court to hold it to be manifestly inadmissible.' inadmissible; only at the hearing did it make a brief reply to the applicant's com- plaints regarding the order under appeal.

Proceedings before the Court of Justice

Legal analysis

16. However, as the appellant observed, that objection was unfounded, because the Council erred in failing to consider that, before the appeal was lodged, on 7 May 18. In particular, the applicant maintains 2001, it had already been received at the here that the Court of First Instance Registry by fax in the evening of 2 May adopted too formalistic an approach when 2001 and was then recorded the following considering whether there was excusable morning. The new paragraph 6 in Article 37 error, attaching excessive importance to the of the Rules of Procedure of the Court of fact that the decision under appeal men- Justice provides that 'the date on which a tioned that a challenge could be raised copy of the signed original of a pleading... pursuant to Article 230 EC. According to is received at the Registry by telefax or the appellant, the Court of First Instance other technical means of communication should in fact have taken into consideration available to the Court shall be deemed to be the specific features and the exceptional the date of lodgment for the purposes of circumstances of this case and, in particu- compliance with the time-limits for taking lar, the inaccuracies whereby the Council steps in proceedings, provided that the and the ECB misled him: the former by signed original of the pleading, accom- concealing the existence of the Monetary panied by the annexes and copies referred Committee's report on the reinforcement of to in the second subparagraph of the EMS and the latter by delaying the paragraph 1 above, is lodged at the Regis- decision in which it refers to that report, try no later than ten days thereafter'. 7I adopting that decision only after expiry of therefore consider that the appeal must be the period for challenging the Council's declared admissible. corresponding decision. Because of those special circumstances, in fact, he was unable to display greater diligence, con- sidering also the exceptionally complex nature of the 'Basle/Nyborg agreement' and the general lack of transparency of Merits of the case the matter of monetary policy. The Court of First Instance therefore erred in law when it found that there was no excusable error capable of justifying the lateness of 17. Turning to the merits of the case, for the challenge. reasons of procedural economy I believe that we should concentrate on the fifth ground of appeal, in which Mr Pitsiorlas

that the lateness of the action was not due of a party as described above, or where that to excusable error in accordance with institution's breach of any of its internal Community case-law: it considered that rules, as for example a code of conduct, has the appellant had not shown that the given rise to such confusion'. 9 Council's conduct was such as to mislead him since, by means of the express indi- cation that proceedings could be brought under Article 230 EC, he had been clearly informed of the finality of this decision. 21. As we have seen, in the order under appeal the Court of First Instance found that the lateness of the action could not be justified by any excusable error because, it held, Mr Pitsiorlas had not shown that the Council's conduct had been such as to give rise to 'pardonable confusion in the mind of a party acting in good faith and exercising 20. For my own part, I must note first of all all the diligence required of a normally that 'it is consistent case-law that the experienced trader'. Since the contested concept of excusable error, which arises decision mentioned that proceedings could directly out of the concern for respect of the be brought under Article 230 EC, the Court principles of legal certainty and the pro- of First Instance held that 'a normally tection of legitimate expectations, can con- diligent individual could have been left in cern only exceptional circumstances in no doubt either as to the finality of this which, in particular, the conduct of the decision, nor as to the time-limit for bring- institution concerned has been, either alone ing proceedings'. or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experi- enced person'. 8 In particular, it has been held that there may be excusable error 'where the late submission of an appli- 22. However, I agree with Mr Pitsiorlas cation has been caused by the fact that the that the Court of First Instance adopted too institution concerned has provided infor- formalistic and restrictive an approach in mation which is wrong or such as to give applying the case-law concerning excusable error. rise to a pardonable confusion in the mind

such as to mislead the applicant as to the the report of the Committee of Governors existence of a Council document forming and he therefore had no grounds for part of the 'Basle/Nyborg agreement': by disputing the decision. indicating that the governors of the central banks were the authors of the document requested, the contested decision inevitably led the applicant to believe that the Council was not able to accede to his application for access because the 'agreement' com- 25. I consider that it should be inferred prised only the report of the Committee of from this that the Council's conduct was Governors (and, therefore, not the Monet- such as to cause Mr Pitsiorlas not to ary Committee's report on the reinforce- challenge the decision of 30 July 1999 in ment of the EMS). Relying on those good time. It was only from the ECB's indications, therefore, Mr Pitsiorlas had decision of 8 November 1999, notified to no reason to challenge a decision which him on 13 November 1999, that he in fact prevented access to a document which learned that the 'Basle/Nyborg agreement' essentially it denied even existed. consisted of 'reports and minutes produced by the Committee of Governors and the Monetary Committee', and so also a con- sultative organ of the Council. Thus, it was not until then that he had reason to doubt the propriety of the Council's decision, coming to the conclusion that that institu- tion had deliberately concealed the exist- ence of the report from the Monetary Committee. Having realised the error into which the Council had led him, he there- 24. It is perfectly clear that Community fore brought proceedings on 20 January institutions 'cannot accede to a request for 2000 against the decision by which the access to documents which do not exist', institution had prevented him gaining and it is also clear that 'in accordance with access to the report of the Monetary the presumption of legality attaching to Committee, by failing to state that it Community acts, where the institution existed. concerned asserts that a particular docu- ment to which access has been sought does not exist, there is a presumption that it does not', unless it is shown to exist 'by relevant and consistent evidence'. 10 Since the appli- cant had no evidence of the existence of the Monetary Committee report on the rein- 26. Nor do I think the appellant can be forcement of the EMS, he could not but criticised for not having acted like 'a party believe the Council's assertion that the acting in good faith and exercising all the 'Basle/Nyborg agreement' comprised only diligence required of a normally experi- enced trader'. After receiving the Council's first letter of refusal of 11 May 1999, 10 — Judgment of the Court of First Instance in Case T-311/00 indicating that the document requested was British American Tobacco (Investments) v Commission most probably a document of the ECB, on [2002] ECR II-2781, paragraph 35, which makes a further reference to that Court's judgment in Case T-123/99 JT's 28 June 1999 Mr Pitsiorlas diligently 're- Corporation v Commission [2000] ECR II-3269, paragraph 58. directed' the request for access to the latter.

And it is clear that if, in the response of access to requested documents. It follows 6 July 1999, the ECB had mentioned the that a person who is refused access to a existence of the report of the Monetary document or to part of a document has, by Committee, Mr Pitsiorlas would immedi- virtue of that very fact, established an ately have been in a position to question the interest in the annulment of the decision'; legality of the Council's subsequent and indeed, that interest is not removed decision of 30 July 1999. Mr Pitsiorlas even by the 'fact that the requested docu- gave further evidence of his diligence when, ments were already in the public on 27 July 1999, he submitted a request for domain'. 11 reconsideration to the ECB, which did not respond until 8 November 1999, which is long after the period of one month laid down in Article 5(3) of Decision 1999/284/EC of 3 November 1998 con- cerning public access to documentation and the archives of the Bank. 28. Therefore I do not believe that Mr Pitsiorlas can be criticised for lack of diligence in not having made a further application for access to an institution which had previously given him a mislead- ing response but choosing rather to chal- lenge that response. The diligence required to justify the lateness of the application on 27. That being the case, I consider that the the basis of excusable error must be appellant did indeed act with 'the diligence measured only against the conditions required of a normally experienced trader'. applying to the challenge to the decision This assertion cannot be countered by the to refuse access, and the applicant's con- fact that, once Mr Pitsiorlas had received duct in seeking to obtain the documents in the ECB decision of 8 November 1999, he question is irrelevant. As is shown by the was in a position to apply again to the judgment of the Court of First Instance Council for access, relying on the infor- referred to, an interest in making a chal- mation acquired in the meantime. The lenge to a refusal is in any case not removed reason for that is, I believe, that (apart, of by the fact that it is possible to submit a course, from the problem of the time-limit further request for access or that the for proceedings) Mr Pitsiorlas was in any applicant has taken action to obtain the case entitled to apply to the Community documents requested. Courts seeking annulment of the Council's decision of 30 July 1999. As the Court of First Instance noted on an earlier occasion, '[t]he objective of Decision 93/731 is to give effect to the principle of the largest possible access for citizens to information with a view to strengthening the demo- cratic nature of the institutions and the 29. In the light of the whole of the fore- trust of the public in the administration. going, I am of the opinionthat the Court of Decision 93/731, like Decision 94/90, does not require that members of the public must put forward reasons for seeking 11 — Judgment in Case'I'-1 "4/95 Svenska Journalistforbundet v Council[19981 ECR II-2289, paragraphs 66, 67 and 69.

— The case is referred back to the Court of First Instance for it to adjudicate on the merits of the case;

— Costs are reserved.

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