C-353/01

OPINION OF MR LÉGER — CASE C-353/01 P

OPINION OF ADVOCATE GENERAL LÉGER delivered on 10 July 2003 1

1. This appeal is brought by Mr Olli 4. At first, the right was stated in declar- Mattila against the judgment of the Court ations of a political nature. The first of of First Instance of the European Commu- these was Declaration No 17 annexed to nities (Fifth Chamber) of 12 July 2001 2 the Final Act of the Treaty on European dismissing his action against the decisions Union signed in Maastricht on 7 February of the Commission and the Council, of 5 1992, on the right of access to infor- and 12 July 1999 respectively, to refuse mation, 4 according to which 'transparency him access to certain documents. 3 of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the adminis- tration'. That declaration was followed by several other declarations of the Heads of State or Government of the Member States at the European Councils held in 1992 and 2. In this case Mr Mattila complains in 1993, according to which the Community particular that the Court of First Instance should be more open 5 and citizens should disregarded his right of partial access to the have 'the fullest possible access to infor- documents in question, as laid down in the mation'. 6 case-law.

I — Legal background 5. On 6 December 1993 the Council and the Commission approved a Code of Con- duct 7concerning public access to Council and Commission documents. The Code of Conduct lays down the principles which 3. The public's right of access to documents those institutions must implement in order of the Community institutions has been the to ensure access to the documents held by subject of progressive recognition. 4 — OJ 1992 C 191, p. 95, 101. 5 — European Councils of Birmingham (Bull. EC 10-1992, p. 9) 1 — Original language: French. and Edinburgh (Bull. EC 12-1992, p. 7). 2 — Case T-204/99 Mattila v Council and Commission [2001] 6 — European Council of Copenhagen (Bull. EC 6-1993, p. 16, ECR II-2265 ('the contested judgment'). point 1.22). 3 — 'The contested decisions'. 7 — OJ 1993 L 340, p. 41 ('the Code of Conduct').

10. In its judgment of 19 July 1999 in Hautala v Council, 1 0 theCourt of First Instance held that Article 4(1) of Decision 93/731 is to be interpreted as meaning that 8. The rules in Decisions 93/731 and 94/90 the Council is obliged to examine whether are essentially the same. With respect to the partial access should be granted to docu- handling of applications for access, they ments covered by one of the exceptions provide that the applicant is to be informed mentioned in that provision, that is, access within one month either that his appli- limited to the items of information in the cation has been approved or that the document not themselves covered by the institution intends to reject it. In the latter exception. 11 It considered that, since the case, the applicant may, within one month, institution concerned had not made such an make a confirmatory application. The examination, as it considered that the right institution has another period of one month of access applied only to documents as such in which to respond to the confirmatory and not to the information contained in them, the decision to refuse access to the

8 — Council Decision of 20 December 1993 on public access to Council documents (OJ 1993 L 340, p. 43). 9 — Commission Decision of 8 February 1994 on public access 10 — Case T-14/98 [1999] ECR II-2489. to Commission documents (OJ 1994 L 46, p. 58). 11 — Paragraph 87.

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documents in question was vitiated by an 13. By letters of 30 April 1999, Mr Mattila error of law and had to be annulled. That made a confirmatory application to each interpretation was expressly confirmed by institution. The Commission and the Coun- the Court of Justice in its judgment of cil confirmed their refusal by the contested 6 December 2001 in Council v Hautala. 12 decisions, on the ground that the docu- ments in question (apart from one of the ones requested from the Commission which could not be identified) were covered by the mandatory exception of the protection of the public interest in the field of inter- national relations.

considered, third, breach of the prin- 16. The Court of First Instance dismissed ciple that an application for access to as manifestly inadmissible the pleas alleg- documents must be considered with ing breach of the 'principle of independent regard to each individual document, review', misuse of powers, and failure to fourth, failure in the duty to state comply with a duty of cooperation incum- reasons and, fifth, failure to take bent on the institutions. It held that those account of his private interest in having pleas had not been raised directly or indi- access to the documents. rectly in the application and did not bear a close relationship with the other pleas in the application. They therefore constituted new pleas. Moreover, it had not been proved or even alleged that those pleas were based on points of law or fact that had arisen during the course of the pro- 29 In his reply, the applicant adds two ceedings. pleas, which he presents in the follow- ing manner:

17. On the substance, the Court of First — the contested decisions violate the Instance considered the first and second "principle of independent review" by pleas together. These alleged manifest error the Council and the Commission...; of assessment in interpreting the exception concerning the protection of international relations, and breach of the principle of proportionality in that partial access to the documents had not been granted or even considered. — the contested decisions are unlawful because of a misuse of powers... .

18. On the first plea, it observed that it was 30 At the hearing, the applicant put for- common ground that the documents at ward a further plea for annulment by issue contained information on the Euro- which he alleged that the defendant pean Union's position as regards its institutions had failed in their duty of relations with the Russian Federation and cooperation in that they rejected, in Ukraine and on negotiations to be held part, his applications on the ground with the United States of America on the that they lacked precision, without subject of Ukraine. It said that the docu- making any attempt to identify and ments to which access had been requested locate the documents in question.' had been drafted in the context of inter-

19. It concluded that the defendant institu- tions had not made a manifest error of assessment in deciding that disclosure of the documents at issue was likely to under- mine the public interest in the field of 68 It is clear from the judgment in Hautala international relations. v Council that the principle of propor- tionality permits the Council and the Commission, in particular cases where the volume of the document or the passages to be removed would give rise to an unreasonable amount of adminis- trative work, to balance the public's 20. On the second plea, the Court of First interest in gaining access to those frag- Instance held, in paragraph 74 of the mentary parts against the burden of contested judgment, that the defendant work so caused (paragraph 86 of the institutions had not infringed the principle judgment). The Council and the Com- of proportionality by failing to grant partial mission could thus, in those particular access to the documents at issue. It based cases, safeguard the interests of good this conclusion on the following grounds: administration.

73 Secondly, the Council's assertion that the documents in question cannot easily be taken separately and that their component parts are not easily 71 The defendant institutions do not removable is uncontested...' therefore dispute that they failed to consider the possibility of granting partial access to the documents in question. Nevertheless, having taken account of the explanations they have proffered and in view of the nature of the documents in question, it seems that, had they done so, they would not 21. The Court of First Instance then in any event have agreed to partial rejected as unfounded the third and fourth access. Given the particular circum- pleas, which alleged breach of the principle stances of the present case, the fact that that an application for access to documents the defendant institutions failed to must be considered with regard to each consider the question of granting par- individual document, and breach of the tial access had no effect on the outcome duty to state reasons.

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(4) To order jointly the Council and the (4) Failure in the duty to state reasons, Commission to pay the costs...'.

(5) Failure to apply objectivity and equal- 25. I therefore conclude that the appeal ity in considering the appellant's inter- may be regarded as complying with the est in having access to the documents, formal requirements of Article 112(d) of the Rules of Procedure.

(6) Breach of the duty of independent review, 26. In support of his appeal, Mr Mattila submits that the Court of First Instance applied Community law incorrectly, in particular Decisions 93/731 and 94/90. He relies on the following eight pleas in law: (7) Misuse of power,

(1) Manifest error of assessment in inter- (8) Failure to comply with the duty to preting the exception concerning the cooperate. protection of international relations,

(1) Admissibility of the second and third heads of claim 14

31. The appellant's second and third heads of claim are therefore inadmissible. 29. Mr Mattila asks the Court, in his second head of claim, to invite the Council and the Commission to reconsider their position and grant him access to the docu- ments applied for, and, in his third head of claim, to grant him at least partial access to (2) Admissibility of the pleas in law in the the documents in question, after deleting appeal passages regarded as liable to harm the international relations of the European Community.

33. They derive from the principle that the purpose of an appeal is to contest the way in which the Court of First Instance gave judgment on the application before it, not to obtain a mere re-examination of the application, which, under Article 49 of the 35. In the present case, the way the appeal EC Statute of the Court of Justice, falls is presented is admittedly awkward, in that outside the jurisdiction of the Court. Thus, the appellant states that in his appeal he according to settled case-law, it follows 'relies on and repeats all his arguments from Article 225 EC, the first paragraph of advanced in the Court of First Instance' and Article 51 of the EC Statute of the Court of that 'in this brief those arguments are not Justice and Article 112(1)(c) of the Rules of repeated'. 22 It may also be seen that, as Procedure that an appeal must indicate regards the sixth to eighth pleas, which the precisely the contested elements of the Court of First Instance held to be inadmiss- judgment which the appellant seeks to have ible, the appellant confines himself to set aside, and the legal arguments specifi- asserting that they expand upon the pleas cally advanced in support of the appeal. 18 made in the original application and that An appeal which merely repeats or repro- they bear a close relationship to those duces verbatim the pleas in law and argu- pleas, without providing the slightest expla- ments submitted to the Court of First nation to support those assertions. The Instance, including those which were based same is true of the third and fourth pleas, in on facts expressly rejected by that Court, respect of which the appellant states that he does not therefore comply with the require- disagrees with the Court of First Instance's ments of the above provisions as to the reasoning, without advancing any argu- explanations to be given. 19 ment to support that challenge.

39. Finally, in the fifth plea in law, it is submitted that the Court of First Instance erred in law in considering that the appel- lant had applied for access to the docu- 37. Thus in his first plea in law the ments in question in his private interest. appellant contests the Court of First According to the appellant, it is of no Instance's conclusion in paragraph 65 of importance, in the light of Hautala v the contested judgment that the defendant Council, whether the application comes institutions did not make a manifest error from a Member of the European Parlia- in considering that disclosure of the docu- ment or from a person against whom a ments at issue was liable to harm the public court has ruled in Finland. The appellant interest in the field of international submits that the private reasons for an relations. He bases his argument on a application can only strengthen it, not comparison of the documents at issue with weaken it. He relies on the equality of the those at issue in Council v Hautala. citizens of the Union.

38. In his second plea the appellant con- 40. In the light of the above, I consider that tests the Court of First Instance's con- the first, second and fifth pleas in law are clusion in paragraph 71 of the contested admissible. judgment that, in the particular circum- stances of the case, the fact that the defendant institutions failed to consider the possibility of granting partial access had no effect on the outcome of their assessment. He also submits that the ground stated in paragraph 70 of the contested judgment, namely that the parts C — Substance of the documents to which partial access could have been granted contained so little information as to be of no use to him, is wrong in law in view of the fundamental 41. I shall begin by examining the second right of access to documents, as described plea in law. In this plea the appellant I - 1086

42. In support of this plea, the appellant puts forward two complaints. First, he contests the Court of First Instance's con- clusion that the fact that the defendant institutions failed to consider the possibility of granting partial access did not, in the 44. According to the Council, my Opinion light of the explanations provided by them in Council v Hautala is not relevant in the and the nature of the documents at issue, present case, because it concerned the have any effect on the outcome of their general question of partial access to docu- assessment. Second, he criticises the Court ments, whereas in the contested judgment of First Instance for accepting that the the Court of First Instance addressed solely refusal of partial access could be justified the question whether the fact that the by the fact that the parts of the documents institutions did not consider granting par- to which access could have been given tial access had had an effect on the decision 'contained so little information as to be of to refuse access altogether. In the light of no use to the applicant' and on the ground the information before the Court of First that 'the documents in question cannot Instance on the content of the documents at easily be taken separately and... their com- issue, that Court cannot be criticised on ponent parts are not easily removable'. this point.

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(b) Assessment

49. The question which arises in the pres- ent appeal is whether the Court of First (i) The first complaint Instance was entitled to hold that, 'having taken account of the explanations [the defendant institutions] have proffered' dur- ing the judicial proceedings and 'in view of the nature of the documents in question', 47. It is common ground that the Commis- that error of law did not justify annulling sion and the Council, at the time of the contested decisions, as it had had no adoption of the contested decisions, did effect on the outcome of the examination not consider the possibility of granting by the institutions.

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52. It should be recalled that, according to 25 — In staff cases, the Court has accepted that explanations given in the course of the proceedings may, in exceptional the Court's settled case-law, in the context cases, render devoid of purpose a plea that insufficient of an application for annulment under reasons were given, so that it no longer justifies annulment of the contested decision (Joined Cases 64/86, 71/86 to Article 230 EC the lawfulness of a Com- 73/86 and 78/86 Sergio and Others v Commission [1988] ECR 1399, paragraph 52 and the case-law cited there). It munity act must be assessed on the basis of has also been held that reasoning the beginnings of which the facts and the law as they stood at the are set out in the contested measure may be enlarged upon and clarified during the proceedings (Case T-16/91 RV time of its adoption. 23 This rule prevents Rendo and Others v Commission |1996| ECR II-1827, paragraph 55). However, in the latter case, this is not the court from taking into account circum- régularisation in the strict sense, that is to say, the correction of a pre-existing illegality, since the act did in stances which arise subsequent to the act. It fact originally contain reasoning in accordance with follows that, in the same way as the rule Article 253 EC. As regards the right to a fair hearing, the Court held in Case 85/76 Hoffmann-La Roche v Com- prevents an applicant from challenging the mission [1979] ECR 4 6 1 , paragraph 15, that if irregular- ities have been put right during the proceedings before the lawfulness of an act by relying on points of Court they do not necessarily lead to the annulment of the fact or law subsequent to that act, 24 it contested decision 'in so far as remedying them at a later stage has not affected the right to be heard'. However, that likewise prevents the unlawfulness of the decision remains an isolated case, and an infringement of the right to a fair hearing cannot, in principle, be the act from being covered or regularised subject of régularisation at a later stage (Case C-51/92 P afterwards by the author of the act. Hercules Chemicals v Commission |1999| ECR I-4235, paragraph 78). It is true that the Court ascertains according to the particular circumstances of each case whether, in the absence of the irregularity, the procedure could have reached a different outcome (ibid., paragraph 82). That decision docs not, however, mean that the Court 23 — Sec Joined Cases 15/76 and 16/76 France v Commission accepts subsequent régularisation of a breach of the right (19791 ECR 321, paragraph 7, and Case C-449/98 P IECC to a fair hearing. Sec, on the problem of régularisation, v Commission | 2 0 0 1 | ECR I-3875, paragraph 87. Ritleng, D., Le contrôle de légalité des actes communaut- 24 — See, for example, Case 225/81 Geist v Commission [1983] aires par la Cour de justice et le Tribunal de première ECR 2217, paragraph 25, and Case T-252/97 Dürbeck v instance des Communautés européennes, thesis, Stras- Commission [2000] ECR II-3031, paragraph 97 and the bourg (points 121 to 128). case-law cited there.

57. Moreover, to accept that practice would amount to seriously reducing the effectiveness of the right of partial access to documents laid down in the Court's case- law, since the institutions could dispense with consideration of partial access by taking the view that, should the applicant 55. This analysis also holds good with bring an action, they could always regula- respect to the judgments in Günzler Alu- rise that omission in the course of the minium v Commission and FFSA and Others v Commission, to which the Court of First Instance refers in paragraph 71 of 28 — In Günzler Aluminium v Commission, which concerned the contested judgment. In those two judg- the recovery after the event of import duties, the Court of ments the Court of First Instance based its First Instance held that the Commission's error of law in the decision at issue was purely formal, since the provision conclusion that the error of law in the applied by the Commission and the applicable provision pursued the same aim and laid down the same conditions. contested decision had not had any effect In FFSA and Others v Commission, the Court of First on the outcome of the assessment by the Instance gave judgment on an application brought against a decision of the Commission on a tax advantage granted by the French Government to La Poste. It found that the advantage in question constituted State aid within the meaning of Article 87(1) EC which was compatible with the common market under Article 86(2) EC. It considered 26 — See Case 312/84 Continentale Produkten Gesellschaft v that the Commission's assessment in the decision at issue, Commission [1987] ECR 841, paragraph 21; Case namely that under Article 86(2) EC the measure in C-169/84 CdF Chimie AZF v Commission [1990] ECR question did not constitute State aid, had had no effect I-3083, paragraph 16; and Case C-86/89 Italy v Commis- on the outcome of the examination of the aid in question sion [1990] ECR I-3891, paragraph 20. and should not entail the annulment of the contested 27 — See Italy v Commission, paragraph 20. decision (paragraph 199).

proceedings. That seems to me to be all the 60. Under Articles 230 EC and 231 EC, if more unjustified in that the right of partial an action brought against a decision on the access acknowledged in the case-law has ground that it is vitiated by an error of law been expressly enshrined by the legislature is well founded, the decision in question in Regulation (EC) No 1049/2001 of the must be declared void. As I have observed,

59. Next, the conclusion reached by the out a specific assessment of each document Court of First Instance in the contested concerned. 31 In the light of those reasons, judgment seems to me to be open to the applicant will then be able to decide criticism because it deprives the applicant whether or not to bring an action for of the procedural guarantees surrounding annulment against those decisions. the examination of an application for access and of his right to a fair hearing. 30 — See, to that effect. Case T-188/98 Kuijer v Council[2000] ECR II-1959, paragraphs 44 to 46. 31 — See Case T-105/95 WWF UK v Commission [1997] ECR 29 — Regulation of 30 May 2001 regarding public access to II-313, paragraphs 64 and 74; Case T-124/96 Interporc v European Parliament, Council and Commission docu- Commission [1998] ECR II-231, paragraph 54; Case ments (OJ 2001 L 145, p. 43). Article 4(6) provides: 'If T-174/95 Svenska Journalistförbundet v Council 119981 only parts of the requested document are covered by any of ECR II-2289, paragraph 117; Kuijer v Council, paragraph the exceptions, the remaining parts of the document shall 38; and Case T-123/99 JT's Corporation v Commission be released.' [2000] ECR II-3269, paragraph 64.

64. Since that error of law suffices to justify setting aside the contested judgment, my observations on the appellant's second complaint are made purely in the alter- 67. The legal context in which the deroga- native. tion in question was recognised should be recalled.

(ii) The second complaint

68. First, according to settled case-law, it is apparent from the scheme of Decisions 93/731 and 94/90 that any person may 65. In my opinion, the Court of First apply for access to any unpublished docu- Instance's analysis in paragraph 69 of the ment of the Council and the Commission I - 1092

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69. Next, the right of access to documents, that is to say, to the items of information contained in them, 33 constitutes the prin- ciple and a refusal is only valid if it is based on one of the exceptions expressly provided 71. In the light of the above, the derogation for in Article 4 of Decision 93/731 or in the recognised by the case-law from the obli- Code of Conduct annexed to Decision gation of the institution concerned to grant 94/90. Since those exceptions to the right partial access to the documents in question of access must be interpreted and applied cannot, in my opinion, be interpreted as strictly, 34 they cannot block access to the meaning that the institution is entitled to items of information which are not them- refuse access to non-confidential infor- selves covered by the exceptions. The mation because it considers that such access effectiveness of the right of access to is of no use to the applicant. documents would otherwise be consider- ably lessened. Moreover, to refuse access to those items of information would consti- tute a measure manifestly disproportionate to ensuring confidentiality of the items covered by one of the exceptions.

32 — See, with respect to Decision 93/731, Svenska journalist- förbundet v Council, paragraph 109, and, with respect to 72. While, in the context of good adminis- Decision 94/90, Interporc v Commission, paragraph 48; Case T-309/97 Bavarian Lager v Commission [1999] ECR tration, the institution concerned may, in II-3217, paragraph 37; and Case T-111/00 British Ameri- response to an initial application, inform can Tobacco International (Investments) v Commission [2001] ECR II-2997, paragraph 42. the applicant that the partial access which 33 — See Council v Hautala, paragraph 23. he can be granted will be limited to items of 34 — See Joined Cases C-174/98 P and C-189/98 P Netherlands information which appear to be already and Van der Wal v Commission [2000] ECR I-1, paragraph 27, and Council v Hautala, paragraph 25. known to him, in my view it is not entitled,

on the other hand, to refuse to grant access 75. Such an interpretation of the deroga- to those items if the applicant maintains his tion would amount in fact to conferring on request in a confirmatory application. the administration a real discretionary power to assess the appropriateness of granting access to the items of non-con- fidential information by reference to what it considers to be the usefulness for the applicant of that information and the work that access to the information involves for it. It would call into question the effective- ness of the right of access to documents, which, it may be recalled, is intended to 73. Only where the extent of the task confer on any person the right of access to entailed by concealing the items which any item of information not covered by an cannot be communicated would exceed exception without that person having to the bounds of what may reasonably be demonstrate an interest in that access. required of the institution concerned may that institution, in the interests of sound administration, be permitted to consider whether such access is of interest and to assess that interest. Moreover, in such a case, as the appellant submits, the existence of a private interest of an applicant might require the administration to grant him partial access to the documents in question despite the very substantial burden of work 76. Following this analysis, I consider it that access will cause. 35 important to point out that in Regulation No 1049/2001 the derogation, stated in the case-law, from the obligation to grant partial access in connection with an excess- ive burden of work was not repeated. Without taking a position here on the question of the extent to which that derogation under the case-law can be applied in the context of that regulation, that circumstance, in the light of the affirmation of the right of access in primary 74. It follows that an institution cannot be Community law in Article 255 EC and entitled to refuse access to the items of Articles 41 and 42 of the Charter of information not covered by an exception Fundamental Rights of the European Union on the ground that it considers that those signed in Nice on 7 December 2000, 36 items are too few to be of any use and in confirms in my view the very strict inter- reliance on mere administrative difficulties. pretation which must be given to that derogation in the context of Decisions 93/731 and 94/90. 35 — Since the administration is obliged to delimit, in each document containing confidential information, the pas- sages which are actually covered by the exception in question, the concealment of those passages logically should not entail an excessive burden of work. 36 — OJ 2000 C 364, p. 1.

(1) Consequences of the appeal 81. In accordance with the first paragraph of Article 122 of the Rules of Procedure of the Court, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision on costs. 79. Under Article 54 of the EC Statute of the Court of Justice, if an appeal is well founded and the Court quashes the decision of the Court of First Instance, it may give final judgment in the matter, where the state of the proceedings so permits. Should the Court set aside the contested judgment as I propose, I consider that it will be in a 82. I propose that the Court should order position to give judgment on the appli- the institutions to bear their own costs and cation. It is common ground that the pay those incurred by the appellant, both in Commission and the Council, when adopt- the proceedings before the Court and in ing the contested decisions, did not con- those before the Court of First Instance.

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VI — Conclusion

83. In view of the above considerations, I propose that the Court should:

(1) set aside the judgment of the Court of First Instance of the European Communities of 12 July 2001 in Case T-204/99 Mattila v Council and Commission;