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JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

10 September 2008 (*)

(Access to documents – Regulation (EC) No 1049/2001 – Preparatory documents relating to the adoption of Directive 2001/18/EC on GMOs – Partial refusal of access – Implied refusal of access – Exceptions relating to the protection of commercial interests, protection of international relations and protection of the decision-making process – Obligation to state reasons)

In Case T42/05,

Rhiannon Williams, residing in Brussels (Belgium), represented by S. Crosby, C. Bryant, Solicitors, and R. Lang, lawyer,

applicant,

v

Commission of the European Communities, represented by C. Docksey and P. Costa de Oliveira, acting as Agents,

defendant,

APPLICATION for annulment of the Commission’s decision of 19 November 2004 partially refusing the applicant access to certain preparatory documents in respect of the legislation on genetically-modified organisms,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, M.E. Martins Ribeiro (Rapporteur) and K. Jürimäe, Judges,

Registrar: C. Kantza, Administrator,

having regard to the written procedure and further to the hearing on 13 November 2007,

gives the following

Judgment

 Legal context

1        Under Article 255 EC:

‘1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

…’

2        Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) defines the principles, conditions and limits governing the right of access to documents of those institutions which is provided for in Article 255 EC. That regulation has been applicable since 3 December 2001.

3        Article 2(1) and (3) of Regulation No 1049/2001 provides:

‘1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.

3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.’

4        Article 4 of Regulation No 1049/2001, concerning exceptions to the right of access, provides:

‘1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

(a)      the public interest as regards:

–        public security,

–        defence and military matters,

–        international relations,

–        the financial, monetary or economic policy of the Community or a Member State;

2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

–        commercial interests of a natural or legal person, including intellectual property,

–        …

unless there is an overriding public interest in disclosure.

3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

…’

5        Article 6(1) to (3) of Regulation No 1049/2001 provides:

‘1. Applications for access to a document shall be made in any written form, including electronic form, in one of the languages referred to in Article 314 [EC] and in a sufficiently precise manner to enable the institution to identify the document. The applicant is not obliged to state reasons for the application.

2. If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents.

3. In the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution.’

6        According to Article 7(2) of Regulation No 1049/2001, ‘[i]n the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position’.

7        Article 8 of Regulation No 1049/2001, concerning the processing of confirmatory applications, states:

‘1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 [EC] and 195 [EC] respectively.

2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

3. Failure by the institution to reply within the prescribed time-limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the EC Treaty.’

8        Article 11(1) and (2) of Regulation No 1049/2001 provides:

‘1. To make citizens’ rights under this Regulation effective, each institution shall provide public access to a register of documents. Access to the register should be provided in electronic form. References to documents shall be recorded in the register without delay.

2. For each document the register shall contain a reference number …, the subject-matter and/or a short description of the content of the document and the date on which it was received or drawn up and recorded in the register. References shall be made in a manner which does not undermine protection of the interests in Article 4.’

 Background to the dispute

9        The applicant, Ms Rhiannon Williams, is a doctoral research fellow at the Institute for European Studies (IES) of the Free University of Brussels (FUB). She is working on a project entitled ‘The impact of globalisation on the European Community’s Environment and Development Law (and Vice Versa?)’. She has chosen, for the purposes of that project, to consider, inter alia, the development of legislation concerning genetically modified organisms (GMOs).

10      By e-mail of 17 June 2004, the applicant submitted a request for access to internal Commission documents relating to the adoption of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of GMOs and repealing Council Directive 90/220/EEC (OJ 2004 L 106, p. 1), as well as to five other legal instruments concerning GMOs. That request covered the following internal documents in respect of each of the six legal instruments:

–        all briefings to the Directors General of the Commission’s Directorate-General (DG) for Trade and of its Environment DG;

–        all briefings to the Environment and Trade Commissioners;

–        all briefings to the directors in the Environment and Trade DGs;

–        all briefings to the Commission’s Secretariat-General;

–        all briefings to the Commission’s Legal Service;

–        all emails between desk officers and heads of unit concerning any of those measures;

–        all relevant minutes of the meetings of the Committee of Permanent Representatives (COREPER), the Council, and the Council working groups.

11      By letter of 13 July 2004, the Director General of the Trade DG informed the applicant that the documents requested could not be released on the ground that the contents could be prejudicial to the European Union position in the case then pending before the World Trade Organisation (WTO) concerning a complaint lodged by the United States of America and other countries in respect of the European Union’s GMO policy.

12      By letter of 23 July 2004, the applicant submitted a confirmatory application to the Director General of the Trade DG pursuant to Article 7(2) of Regulation No 1049/2001, in which she stated, inter alia, that Directive 2001/18 was the only piece of legislation in respect of which she had requested preparatory documents that was mentioned in the case pending before the WTO.

13      By letter of 12 August 2004, having noted that the request was very wide-ranging and would require extensive searches in a very sensitive area and that most documents drafted in the course of the preparation of new legislation were not ‘briefings’, the Commission stated that it was its understanding that the applicant was interested in the internal exchanges of ideas, consultations and deliberations during the preparation of the Commission’s proposals. Taking the view that it was not entirely clear which documents would be of interest to the applicant, the Commission therefore asked her, in accordance with Article 6(2) of Regulation No 1049/2001, to clarify her request. With regard to Council documents, the applicant was invited to contact the document access department of that institution.

14      By letter of 2 September 2004, the applicant confirmed that she was indeed interested in the internal exchanges of ideas, consultations and deliberations during the preparation of the Commission’s proposals, but that it was not possible for her to be more specific, as she did not know exactly what the different types of documents contained and their titles were not always indicative of their content. Therefore, she confirmed that she was requesting access to all the document types referred to in her initial request. In addition, acknowledging the wide-ranging nature of her request, she proposed to the Commission a form of staggered access, beginning with access to the documents relating to Directive 2001/18.

15      By letter of 21 September 2004, the Commission accepted the applicant’s suggestion for staggered access to the documents requested and also proposed that the request be split into six separate requests, each covering the documents relating to one of the legal instruments referred to in the initial request. The Commission offered, moreover, to handle the six requests in the applicant’s order of priority, adding that it would try to handle each of them within a reasonable time-frame and that, once examination of the first request had been completed, it would invite the applicant to inspect the documents in the Commission’s offices or send the documents to her.

16      By letter of 19 October 2004, the applicant agreed to her request for access being split into six, and suggested an order of priority for the handling of those six requests.

17      By letter of 20 October 2004, the Commission explained that it would try to handle each of the six requests within a time-limit of 15 working days and that the reply to the first request, concerning the documents relating to Directive 2001/18, would be provided towards the end of October 2004.

18      By letter of 19 November 2004, the Secretary General notified the applicant of the Commission’s decision partially refusing her access to certain preparatory documents in respect of the legislation relating to GMOs (‘the contested decision’).

19      It is apparent from the contested decision that the Commission identified 48 documents as falling within the scope of the applicant’s first request. Of those documents, full access was granted to 22, namely documents Nos 1, 2, 7, 8, 10 to 15, 18, 19, 22 to 26, 28, 35, 37, 39 and 42. Partial access was granted to documents Nos 30, 31 and 43. Access to 23 other documents, numbered 3 to 6, 9, 16, 17, 20, 21, 27, 29, 32 to 34, 36, 38, 40, 41 and 44 to 48, was refused.

20      In the first place, with regard to the documents to which partial access was granted, the Commission stated that the second part of document No 30 was covered by the exception concerning the protection of commercial interests provided for under the first indent of Article 4(2) of Regulation No 1049/2001, and the exception relating to the protection of the decision-making process provided for under the second subparagraph of Article 4(3). The same exceptions covered the partial refusal of access to document No 31, which was a revised version of document No 30. With regard to document No 43, the Commission stated that the partial refusal of access was based on the exception relating to the protection of international relations provided for under the third indent of Article 4(1)(a) of Regulation No 1049/2001.

21      In the second place, with regard to the total refusal of access to 23 other documents consisting of internal briefings and notes drafted in preparation for Council or Parliament meetings or meetings with interested parties, first, the Commission stated that those documents contained opinions intended for use in deliberations and preliminary consultations within the Commission. As those opinions constituted internal views, which are not necessarily followed by the competent authority when taking the final decision, the Commission took the view that their disclosure would undermine its decision-making process and that it therefore had to protect this ‘space to think’ in order to safeguard that process. Such protection was covered by the exception provided for under the second subparagraph of Article 4(3) of Regulation No 1049/2001 and, albeit indirectly, by the exception relating to the protection of international relations provided for under the third indent of Article 4(1)(a). On that last point, the Commission stated that the harm caused to the decision-making process would also weaken its position as regards the issues pending before the special panel set up in the WTO, thus putting at risk its relations with its trading partners.

22      Second, the Commission stated that the disclosure of certain notes which were specifically drafted in order to prepare the Commissioner for international meetings, that is to say documents Nos 36, 41, 45 and 47, would put at risk the Commissioner’s position as the European Union’s representative in international discussions and negotiations on GMOs. Those documents were therefore also specifically covered by the exception relating to the protection of international relations provided for under the third indent of Article 4(1)(a) of Regulation No 1049/2001.

23      Third, as regards documents Nos 27 and 32 to 34, which are briefing notes in preparation for meetings with manufacturers of biotechnology products, the Commission maintained that they contained information the disclosure of which would affect the commercial interests of the companies concerned. Therefore, the parts containing that information were also covered by the exception relating to the protection of commercial interests provided for under the first indent of Article 4(2) of Regulation No 1049/2001.

24      Fourth, with regard to the documents to which access was totally refused, the Commission stated that partial access could not be granted to any of those documents as their full content fell within the scope of one or more of the exceptions to the right of access.

25      In the third place, the Commission stated that it had considered whether there was an overriding public interest to justify disclosure of the documents to which access had been totally or partially refused in order to protect the Commission’s decision-making process and the commercial interests of manufacturers of biotechnology products. According to the Commission, the public interest in the issue of GMOs does not outweigh the damage that would be caused to the Commission’s decision-making process and to commercial interests if those specific documents were to be disclosed at that stage of the discussions.

26      In the fourth place, the Commission observed that the applicant could bring proceedings before the Court of First Instance or lodge a complaint against that decision with the European Ombudsman under the conditions set out in Articles 230 EC and 195 EC respectively.

 Procedure and forms of order sought by the parties

27      The applicant brought the present action by application lodged at the Registry of the Court of First Instance on 31 January 2005.

28      Upon hearing the Judge-Rapporteur, the Court of First Instance (Fifth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure of the Court of First Instance, put certain written questions to the applicant and to the Commission, who complied with those requests within the prescribed period.

29      By order of 13 July 2007, the Court ordered the Commission, pursuant to Article 65(b), Article 66(1) and the third subparagraph of Article 67(3) of the Rules of Procedure, to produce documents Nos 6, 9, 16, 17, 29 and 46, as identified in the annex to the contested decision, while providing that those documents were not to be communicated to the applicant in the context of the present proceedings. The Commission complied with that request.

30      The parties presented oral argument and their answers to the questions put by the Court at the hearing on 13 November 2007.

31      The applicant claims that the Court should:

–        annul the contested decision in so far as it refuses to give access to the documents which, although not identified in the contested decision, must be presumed to exist;

–        annul the contested decision in so far as it refuses to give access to all or any of documents Nos 6, 9, 16, 17, 27, 29, 32 to 34 and 46, as identified in the contested decision;

–        order the Commission to pay the costs.

32      The Commission contends that the Court should:

–        dismiss the application as unfounded;

–        order the applicant to pay the costs.

 Law

33      The applicant relies on three pleas in law in support of her action. The first plea in law alleges the infringement of Article 8 of Regulation No 1049/2001 and of Article 253 EC in that, in failing to identify documents covered by the request for access which must be presumed to exist, the Commission impliedly refused access to those documents without giving reasons for its refusal. The second plea in law, which concerns the refusal of access to documents Nos 6, 9, 16, 17, 29 and 46, alleges that the Commission committed errors of law and manifest errors of assessment in considering that those documents were covered by the exceptions provided for under the second subparagraph of Article 4(3) of Regulation No 1049/2001 relating to the protection of the decision-making process and under the third indent of Article 4(1)(a) of that regulation relating to the protection of international relations, and that it infringed Article 253 EC by failing to state the reasons for its refusal. The third plea in law, which relates to the refusal of access to documents Nos 27 and 32 to 34, alleges that the Commission infringed the principle of proportionality in failing to consider the possibility of granting partial access to those documents in accordance with Article 4(6) of Regulation No 1049/2001, and Article 253 EC by failing to state its reasons for the refusal of partial access.

 First plea in law, alleging that, in failing to identify and grant access to documents included within the request, the Commission infringed Article 8 of Regulation No 1049/2001 and failed to state the reasons for its decision in accordance with Article 253 EC

 Arguments of the parties

34      The applicant submits that, in failing to identify documents that were covered by her request, the Commission impliedly refused access to those documents, and that that refusal constitutes a decision within the meaning of Article 230 EC. She observes that her first request referred to access to all internal Commission documents relating to the legislative passage of Directive 2001/18. However, in the contested decision, the Commission identified only 48 documents, although other documents falling within the scope of her first request had to exist. Those documents fall into three categories:

(1)      documents produced by the Trade DG;

(2)      certain types of documents included in the request (either produced by the Trade DG or the Environment DG);

(3)      documents relating to the legislative passage of Directive 2001/18 which were produced before 2001.

35      With regard, in the first place, to documents produced by the Trade DG, the applicant notes in her reply that, by letter of 6 June 2005, the Commission sent her a confirmatory decision concerning documents from that DG, which confirms that the contested decision did not relate to those documents. Although the application must be considered as being devoid of purpose with regard to the head of claim concerning the absence of documents produced by the Trade DG, the applicant submits that it is not apparent from the contested decision that those documents were to be covered by a subsequent decision. Consequently, the applicant takes the view that she was entitled to raise that head of claim in the application and that the costs which she has incurred in that regard must be borne in full by the Commission.

36      The applicant denies that the action may be regarded as premature so far as concerns the implied refusal to grant her access to documents which she presumes exist but which are not identified in the contested decision. She submits that the contested decision is a final decision as regards her first request, as confirmed by the fact that it contains a reminder of the remedies available to her for challenging the decision. The applicant infers from this that she was obliged to bring the present proceedings within two months from the date of notification of the contested decision in order to avoid the action being time-barred. Furthermore, contacting the Commission to check on progress in the handling of her first request would not have changed the nature of the problem.

37      With regard, in the second place, to certain types of documents within the scope of her first request, the applicant submits that the documents identified by the Commission do not include certain categories of documents included in the initial request, namely briefings to the Directors General and to the directors of the Trade DG and Environment DG, briefings to the Secretariat-General and to the Legal Service and all e-mails between desk officers and heads of unit. The applicant infers from this that documents within those categories must be regarded as having been withheld.

38      The applicant further submits that, in its letter of 12 August 2004, the Commission itself clarified its understanding of the term ‘briefing’ as the exchanges of ideas, consultations and deliberations during the preparation of the Commission’s proposals, and that she confirmed that interpretation; therefore, the refusal of access to that type of document cannot be justified, as the Commission claims, by the fact that the term ‘briefing’ is too imprecise. As for the term ‘e-mails’, the applicant observes that that is a term which does not present any difficulties as regards interpretation.

39      With regard, in the third place, to documents dating from before 2001, the applicant notes that, with the exception of documents Nos 1 and 2, all the documents identified by the Commission date from 2001. Given that the initial proposal for Directive 2001/18 was adopted on 23 February 1998 and that the directive was formally adopted on 12 March 2001, the applicant takes the view that other documents must exist in respect of the period between the adoption of the initial proposal and the adoption of Directive 2001/18, as well as preparatory documents from before the adoption of the initial proposal.

40      With regard, in the fourth place, to all the documents which are presumed by the applicant to exist, the applicant submits that the withholding of documents known to exist and within the scope of a request for access amounts to a refusal within the meaning of Article 8 of Regulation No 1049/2001. In the applicant’s view, the Commission cannot maintain that where a request for access relates to a very broad category of documents and is imprecise, a failure to consider the disclosure of every conceivable document does not constitute a refusal.

41      As regards the alleged lack of clarity of her request, the applicant submits that it was as clear and specific a request as could be made by someone without prior knowledge of the nature and content of the documents in existence. She submits, further, that the search of the public register required to be maintained by each institution under Article 11 of Regulation No 1049/2001 in order to make it easier for citizens to exercise their rights did not disclose the types of documents available. Therefore, the Commission cannot claim that the request was imprecise if it has failed to put the applicant in a position of being able to be more specific and, in any event, the contested decision makes no mention of the alleged lack of clarity.

42      Next, as regards the fact that her request was too wide-ranging, the applicant submits that that argument is unfounded in view of the fact that the initial request was divided into six and that the present proceedings relate only to the decision on her first request, namely that concerning the documents relating to Directive 2001/18. That request could be regarded as being too wide-ranging or as having placed an enormous administrative burden on the Commission only if it covered all documents relating to GMOs, which, however, is not the case.

43      The applicant further submits that the Commission’s concerns about the burden of work imposed by her request were expressed for the first time before the Court of First Instance, whereas the division of her initial request into six appeared to have ensured that her initial request could be treated as six consecutive, standard requests. In any event, the Commission failed to provide evidence of the enormous or unreasonable nature of her request, as confirmed by the fact that it identified only 48 documents. As for the fact that it allegedly had to decide which of the documents examined could be of interest to her, the applicant submits that the Commission only had to identify the documents which fell within the scope of her request and to check whether they were covered by one of the exceptions referred to in Article 4 of Regulation No 1049/2001.

44      Furthermore, the applicant challenges the Commission’s interpretation of the judgment of the Court of First Instance in Case T2/03 Verein für Konsumenteninformation v Commission [2005] ECR II1121 (‘VKI’), maintaining that it was stated in that judgment that, in principle, it is not appropriate that account should be taken of the amount of work involved for the institution concerned in order to vary the scope of the right of access, and that, consequently, the Commission can rely on the administrative burden only in exceptional circumstances. In addition, the applicant submits that the finding of a fair solution pursuant to Article 6(3) of Regulation No 1049/2001 consists solely in enabling the interests of the applicant to be reconciled with those of good administration (VKI, paragraph 101).

45      Finally, the Commission’s failure to state its reasons for the implied refusal of access constitutes an infringement of the obligation under Article 253 EC to state reasons.

46      The Commission takes the view that, in examining its conduct, the Court should take account not only of Article 8 of Regulation No 1049/2001, but also of the terms of the fair solution agreed by the parties under Article 6(3). In that regard, the Commission maintains that, while the fair solution cannot affect the institution’s obligation to state reasons for its decision to refuse access to documents, it can nevertheless affect the time framework within which an institution can make, and is required to make, a decision. In addition, with regard to the obligation to state reasons for a decision to refuse access, it should be noted that the applicant did not request specific documents, but merely referred to broad categories of documents, without being certain what they contained.

47      With regard, in the first place, to documents produced by the Trade DG, the Commission contends that, at the time the action was brought, it was in the process of taking a decision concerning those documents and that the contested decision concerned only a first set of documents relating to Directive 2001/18. The Trade DG’s documents – which had since been dealt with in the decision sent to the applicant by letter of 6 June 2005 – were not referred to in the contested decision because only documents from the Environment DG and the Health and Consumer Protection DG were mentioned in that decision. The applicant should have allowed the Commission a reasonable period of time to complete its response; the Commission had, moreover, undertaken to try to handle each of the six requests within a time-limit of 15 working days.

48      According to the Commission, the action should therefore be regarded as premature, since it was brought while the Commission was still in the process of collecting documents produced by the Trade DG and other departments in order to respond to the request for access. In view of the fair solution agreed under Article 6(3) of Regulation No 1049/2001, the applicant could have contacted the Commission to check on progress in dealing with her request, instead of breaking off all dialogue and bringing an action before the Court. The request relating to documents produced by the Trade DG did not become devoid of purpose after the decision of 6 June 2005, since it was already devoid of purpose at the time the action was brought, the Trade DG having taken the view that it was preferable to search for documents relating to all six legal instruments referred to in the initial request.

49      With regard, in the second place, to certain types of documents produced by the Trade DG or Environment DG, the Commission contends that such documents were not defined in such a way as to enable it to identify them and that, therefore, the Commission cannot be expected to give reasons for its decision not to disclose documents which it did not have the opportunity to examine. Any failure in the examination of the documents to which the applicant wished to have access is therefore solely due to the fact that she failed to clarify her request.

50      With regard, in the third place, to documents dating from before 2001, the Commission observes that the documents relating to the process of adoption of Directive 2001/18 cannot be classified as ‘briefings’, ‘e-mails’ or ‘minutes’, which are the types of documents to which the applicant requested access. It recalls having indicated to the applicant that most documents drafted in the course of the preparation of new legislation are not briefings, but she nevertheless confirmed her initial request without giving the Commission the minimum information necessary to enable it to identify and examine the documents in question.

51      With regard, in the fourth place, to all the documents allegedly withheld, the Commission observes that the allegation that it failed to disclose documents which are presumed to exist raises important questions which the Court should consider. According to the Commission, when a request for access is not sufficiently specific and relates to broad categories of documents spread among a number of files in different Commission departments, it is not a refusal not to consider the disclosure of every conceivable document. Furthermore, in the present case, the Commission was in a position to understand that the applicant was also asking for access to documents such as draft proposals for the directive only after the present action was brought.

52      The Commission maintains that, with regard to requests concerning broad categories of documents, the obligation to assess in a concrete and individual manner whether exceptions to the right of access apply to each of the documents referred to in a request (VKI, cited in paragraph 44 above, at paragraph 72) means that a considerable amount of work on the Commission’s part is unavoidable, and it increases further when a request for access does not refer to specific documents. In those circumstances, the Court has recognised that an institution may retain the right to balance the public interest in disclosure against the burden of work caused by a request for access relating to a manifestly unreasonable number of documents in order to safeguard the interests of good administration, while stating that that possibility remains applicable only in exceptional cases (VKI, cited in paragraph 44 above, at paragraphs 101 to 103).

53      According to the Commission, the present case must be regarded as being exceptional because it relates to broad and unspecified categories of documents spread across numerous files in various Commission departments, and dealing with completely different procedures, the only common element being the fact that they all relate to GMOs. The Commission explains that it has sought, in the present case, to find a fair balance between the request for access and its capacity to respond to it within the limits of the principle of good administration. If it is to observe that principle, it cannot be required, under the principle of transparency, to consider the disclosure of each and every document which it holds that could be relevant to a broad and vague request.

54      The fact that an indication was given of the amount of work involved explains only the context and scope of the applicant’s request; it does not mean that the Commission is thereby seeking to give reasons for an alleged refusal to give access to documents presumed to exist, given that it nevertheless examined each of the documents considered to be relevant and gave reasons for its refusal on the basis of the exceptions provided for under Article 4 of Regulation No 1049/2001. The facts of the present case show that the request for access at issue was very wide-ranging, even after it was divided into six, and that the Commission examined a large number of documents, 48 of which were selected as appearing to the Commission to fall within the request. The Commission further contends that, if it were ordered to pay the costs, the applicant would no longer have any incentive to cooperate with the Commission within the framework of the fair solution.

 Findings of the Court

–       Subject-matter of the proceedings

55      It must be noted at the outset that, as the letters of 21 September and 19 October 2004 show, the applicant’s initial request seeking access to documents relating to the framework for the adoption of six legal instruments concerning GMOs was divided into six, each relating to one of the legal instruments referred to in that initial request, in accordance with the fair solution agreed pursuant to Article 6(3) of Regulation No 1049/2001.

56      It must also be noted that, in accordance with the order of priority proposed by the applicant in her letters of 2 September and 19 October 2004, the contested decision – as the Commission itself states – relates to the first request, that is the request ‘to obtain the background documents to Directive 2001/18’, and there is nothing in that decision to suggest that, as far as those documents are concerned, the contested decision still had to be supplemented by one or more other decisions. In addition, at point 5 of the contested decision, the Commission expressly set out the remedies available to the applicant for challenging that decision. It is therefore apparent from the terms of the contested decision that it was a final decision as regards access to the documents relating to Directive 2001/18.

57      It is true that, after the present proceedings were initiated, the applicant received a second confirmatory decision, the decision of 6 June 2005, by which the Commission granted her access to documents produced by the Trade DG in respect of the six legal instruments referred to in the initial request, including those relating to Directive 2001/18. As a result, the applicant acknowledged, in her reply, that the action had become devoid of purpose as regards the alleged implied refusal to grant her access to documents produced by the Trade DG, while seeking an order that the Commission should pay the costs which she had incurred in that regard as a result of the Commission’s conduct.

58      Contrary to the Commission’s contention, that does not in any way prove, however, that the action should be regarded as premature so far as concerns the documents relating to Directive 2001/18 to which access was impliedly refused, or at least those of them which were produced by the Trade DG. As is apparent from the observations in paragraphs 55 and 56 above, neither the documents in the file nor the contested decision were such that the applicant could have appreciated that the reply to her first request was incomplete or that the contested decision would be followed by a second decision concerning documents produced by the Trade DG.

59      Furthermore, the Court rejects the Commission’s argument that the request was premature because it had agreed a fair solution with the applicant.

60      First of all, the fact that such a fair solution had been agreed with the applicant pursuant to Article 6(3) of Regulation No 1049/2001 does not affect the time-limit for bringing an action against a final decision, such as the contested decision.

61      Second, it is apparent from the fair solution agreed by the Commission and the applicant and, in particular, the letters of 21 September and 20 October 2004 that the initial request for access would be divided into six and that the reply to the first request would cover the documents relating to Directive 2001/18. In addition, it is apparent from those letters that, after adopting the contested decision, the Commission would examine the five other requests for access in accordance with the applicant’s proposed order of priority.

62      It follows that the Commission cannot accuse the applicant of having abandoned the fair solution by claiming that the applicant broke off all dialogue with the Secretariat-General and brought an action before the Court of First Instance instead of allowing the Commission a reasonable period of time to complete the response to her request. Such an argument could be relevant only if the applicant had accused the Commission of not yet having responded to the other five requests. However, that is not the case, since the action is directed only against the refusal of access to certain documents relating to Directive 2001/18.

63      It follows from all the foregoing that the adoption of the second confirmatory decision after the present action was brought rendered the action devoid of purpose inasmuch as it sought the annulment of the contested decision on the ground that it was an implied refusal of access to preparatory documents relating to Directive 2001/18 produced by the Trade DG.

64      In those circumstances, examination of the merits of the present plea in law will relate only to the alleged implied refusal to grant access to certain types of documents covered by the first request, such as briefings to the Directors General and directors in the Trade and Environment DGs, the Secretariat-General and the Legal Service, all e-mails between desk officers and heads of unit, and documents drawn up before 2001, with the exception of any document relating to Directive 2001/18 produced by the Trade DG.

–       Infringement of Article 8 of Regulation No 1049/2001 and Article 253 EC

65      With regard to the alleged infringement of Article 8(3) of Regulation No 1049/2001, in so far as the Commission impliedly refused access to certain documents relating to the background to the adoption of Directive 2001/18, it must be noted that the Commission adopted an express decision partially rejecting the applicant’s confirmatory application (see paragraph 19 above). The question arising therefore is whether the view may be taken that there is an implied refusal of access to the documents referred to in paragraph 64 above.

66      To that end it is necessary, in the first place, to determine whether the documents presumed by the applicant to exist – although they are not identified in the contested decision – do actually exist. In the event of a positive response to that question it must, in the second place, be established whether the first request was sufficiently precise to enable the Commission to understand that the request related to such documents. The conclusion that the administration’s silence constitutes a rejection decision can be drawn only if that administration was in fact in a position effectively to decide and, therefore, to understand what was being asked of it. In the third place, it is necessary to address, if appropriate, the issue whether – as the Commission claims – it is not obliged to examine all documents falling within the scope of a request which relates to broad categories of documents and is not expressed sufficiently precisely.

67      In the first place, as regards the question of the actual existence of documents which, according to the person requesting access, are presumed to exist but which have not been identified by him, it must be observed that it is apparent from the case-law concerning the application of the Code of Conduct of 6 December 1993 concerning public access to Council and Commission documents (OJ 1993 L 340, p. 41; ‘the 1993 code of conduct’) that, in accordance with the presumption of legality attaching to Community acts, where the institution concerned asserts that a particular document to which access has been sought does not exist, there is a presumption that it does not. That, however, is a simple presumption which the person requesting access may rebut in any way by relevant and consistent evidence (Case T311/00 British American Tobacco (Investments) v Commission [2002] ECR II2781, paragraph 35; see also, to that effect, Case T123/99 JT’s Corporation v Commission [2000] ECR II3269, paragraph 58).

68      In the present case, the Commission expressly confirmed in response to a written question put by the Court that it held preparatory documents relating to Directive 2001/18 other than the 48 documents identified in the contested decision. Furthermore, the list which it attached to one of the replies to the Court’s written questions lists more than 400 preparatory documents drawn up by the Commission, the Council or the Parliament. The Commission states, however, that, contrary to the applicant’s allegations, no documents were concealed and all documents which it was possible to identify were specifically addressed. In fact, the difficulties in identifying documents were due to the lack of a single, exhaustive record of documents relating to the adoption of the directive.

69      It must be concluded, therefore, that there is a significant number of preparatory documents relating to Directive 2001/18 other than those identified in the contested decision.

70      In the second place, as to whether the applicant’s request for access was sufficiently precise, it must be noted that both the initial request and the confirmatory application for access are drawn up in general terms, in that the applicant does not request specific documents, but certain types of documents dealing with the background to the adoption of Directive 2001/18, such as briefings to the Commissioners responsible for environmental and trade issues, the Directors General and directors in the Environment and Trade DGs, the Secretariat-General and Legal Service, and all e-mails between desk officers and heads of unit.

71      It must be acknowledged in that regard that the Community legislature was conscious of the initial acute difficulty which the identification of documents entails for citizens in search of information who, in most cases, do not know which documents contain that information, and who have to contact the administration holding the documents and thus the information.

72      To make citizens’ rights effective, Article 11 of Regulation No 1049/2001 provides for the creation by each institution concerned of an electronically accessible register of documents which is to contain, in respect of each document, a reference number, the subject-matter and/or a short description of the content of the document and the date on which it was received or drawn up and recorded in the register. It is, therefore, a research tool which is intended to enable citizens to identify the documents which are likely to be of interest to them.

73      As the Commission itself has nevertheless explained, since the preparatory documents relating to the circumstances of the adoption of Directive 2001/18 were drawn up before the introduction of the public register, those document references were not accessible by means of that register, which, moreover, contains only certain types of documents, such as legislation, final proposals or other public documents, agendas and minutes. It follows that, in the present case, any research conducted using that tool could not assist the applicant, as it would not have enabled her to identify the documents relating to the adoption of Directive 2001/18.

74      Moreover, Article 6(2) of Regulation No 1049/2001 provides that ‘[i]f an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents’. The wording of that provision, and the use of the verbs ‘ask’ and ‘assist’, appears to suggest that if, for whatever reason, the recipient institution finds the request for access to be insufficiently precise, that alone must lead it to contact the applicant in order to define the documents requested as well as possible. The provision is therefore one which, in relation to public access to documents, formally transcribes the principle of good administration, which is one of the guarantees afforded by the Community legal order in administrative procedures (see, to that effect, VKI, cited in paragraph 44 above, at paragraph 107). The duty to provide assistance is therefore essential in order to ensure the effectiveness of the right of access established by Regulation No 1049/2001.

75      In the present case, the Commission carried out its duty to provide assistance, since it asked the applicant by letter of 12 August 2004 to clarify her request because it was difficult for the Commission accurately to determine which documents would be of interest to her. In the same letter the Commission pointed out, inter alia, that most documents drafted in the course of the preparation of new legislation do not take the form of ‘briefings’ but can be of different types, and that it was the Commission’s understanding that the applicant was interested in the internal exchanges of ideas, consultations and deliberations during the preparation of the Commission’s proposals.

76      In her reply of 2 September 2004, the applicant confirmed the Commission’s understanding, while pointing out that she could not be more specific, as she did not know what was contained in the different types of documents and their titles were not always indicative of their content.

77      It follows from the foregoing that, while the Commission did ask the applicant, in accordance with Article 6(2) of Regulation No 1049/2001, to clarify her request, the fact remains that the Commission did not provide her with any useful information to enable her to clarify the request effectively, in particular to enable her to identify the specific documents relating to the background to the adoption of Directive 2001/18. Furthermore, following the Commission’s request for clarification, the applicant confirmed by letter of 2 September 2004 that she was indeed interested in the internal exchanges of ideas, consultations and deliberations during the preparation of the Commission’s proposals.

78      In those circumstances, the Commission cannot maintain that it was not in a position to understand that the applicant’s request for access concerned all internal documents relating to the background to the adoption of Directive 2001/18. It follows that, although the request for access did not include a list of specific documents which the applicant wished to obtain, the information she provided, particularly following the dialogue initiated with the Commission, was sufficient to ensure that the latter understood to which documents the request for access related.

79      With regard to briefings to the Commissioners responsible for environmental and trade issues, the Directors General and directors in the Environment and Trade DGs, the Secretariat-General and the Legal Service, and all e-mails between desk officers and heads of unit in relation to Directive 2001/18, it is sufficient to note that the applicant clearly stated in her initial request that she wished to have access to that type of documentation, namely all the institution’s internal correspondence relating to the preparation of that directive. Further, the term ‘briefing’ was clarified as between the Commission and the applicant; it must therefore be concluded that the applicant’s request cannot be considered imprecise as regards that type of documentation.

80      With regard to documents dating from before 2001, since the applicant sought access to documents relating to the background to the adoption of Directive 2001/18, those documents must, in principle, have included documents drawn up before 23 February 1998, the date on which the initial proposal for that directive was adopted, and also those drawn up between that date and the final adoption of the directive. The fact that only 2 of the 48 documents identified in the contested decision satisfy that condition is, according to the applicant, evidence of the fact that other documents must have existed, whereas the Commission, which does not deny the existence of those other documents, contends that the initial request for access did not cover draft proposals for legislation concerning GMOs, and that it was only after the present action was brought that the Commission was in a position to understand that the applicant was also requesting access to draft proposals relating to Directive 2001/18.

81      It must be noted in that regard that it is, admittedly, the case that the document types identified by the applicant in her request for access included only the institution’s internal correspondence, that is briefings and e-mails. However, following the clarification requested by the Commission, the applicant confirmed to it that she was interested in the exchanges of ideas, consultations and deliberations during the preparation of the Commission’s proposals. It goes without saying that deliberations, at least, do not take the form of briefings or e-mails.

82      In view of the foregoing, it must therefore be concluded that, save as regards the draft proposals relating to Directive 2001/18 – which, moreover, are normally public documents, as they are published in the Official Journal of the European Communities – the Commission was in a position to understand that the request for access covered all the preparatory documents relating to Directive 2001/18. Furthermore, at the hearing, the applicant expressly confirmed that her request for access was not intended to procure any preparatory documents other than internal documents. All public documents, such as published proposals for legislation, were therefore excluded from her request.

83      It follows from this that the fact that the Commission did not identify in the contested decision all the internal documents relating to the background to the adoption of Directive 2001/18 amounts to an implied refusal of access under Article 8 of Regulation No 1049/2001, which is actionable before the Court of First Instance.

84      In the third place, it is necessary to check whether the Commission’s failure to consider the disclosure of documents which were not identified in the contested decision and falling within the scope of the request for access at issue could be justified in the particular circumstances of the case, inter alia on the basis that the request for access was, according to the Commission, very wide-ranging and imprecise.

85      It must be observed that the Court has already had occasion – in VKI, cited in paragraph 44 above – to note that it is necessary to bear in mind that an applicant may make a request for access, under Regulation No 1049/2001, relating to a manifestly unreasonable number of documents, perhaps for trivial reasons, thus imposing a volume of work for processing of his request which could very substantially paralyse the proper working of the institution. The Court also noted in the same judgment that, in such a case, the institution’s right to seek a ‘fair solution’ together with the applicant, pursuant to Article 6(3) of Regulation No 1049/2001, reflects the possibility of account being taken, albeit in a particularly limited way, of the need to reconcile the interests of the applicant with those of good administration. The Court concluded from this that an institution therefore had to retain the right, in particular cases where concrete, individual examination of the documents would entail an unreasonable amount of administrative work, to balance the interest in public access to the documents against the burden of work so caused, in order to safeguard, in those particular cases, the interests of good administration (VKI, cited in paragraph 44 above, at paragraphs 101 and 102).

86      The Court stated, however, that that possibility was applicable only in exceptional cases, in view, in particular, of the fact that it is not, in principle, appropriate that account should be taken of the amount of work entailed by the exercise of the applicant’s right of access and its interest in order to vary the scope of that right (VKI, cited in paragraph 44 above, at paragraphs 103 and 108). In addition, in so far as the right of access to documents held by the institutions constitutes an approach to be adopted in principle, the institution relying on the unreasonableness of the task entailed by the request bears the burden of proof of the scale of that task (VKI, cited in paragraph 44 above, at paragraph 113).

87      In the present case, first of all, it must be noted that the Commission availed itself of the possibility provided by Article 6(3) of Regulation No 1049/2001, which enabled it to divide the applicant’s initial request into six. Accordingly, in the contested decision, the Commission replied only to the first of the applicant’s requests – whereby the applicant sought access to preparatory documents relating to Directive 2001/18 – which means that the request cannot be regarded as very wide-ranging. Furthermore, there is nothing in the contested decision to suggest that the handling of that request would entail an unreasonable amount of work, likely to be detrimental to the principle of good administration.

88      Second, as is apparent from paragraphs 69 to 82 above, the fact that neither the initial request nor the confirmatory application mentions specific documents cannot be regarded as having prevented the Commission from understanding that the applicant wished to have access to all preparatory documents relating to the legislation on GMOs, including those relating to Directive 2001/18. Nor can the Commission reasonably rely on that fact in support of its contention that the burden of work imposed by the handling of the first request was unreasonable and that, in those circumstances, if it was to observe the principle of good administration, it could not – due to its limited resources – be required, under the principle of transparency, to consider the disclosure of each and every document held by it that could be relevant to such a request.

89      In that regard, it is sufficient to note that the Commission confined itself in its written pleadings to maintaining that the first request amounted to an exceptional situation because it was actually not possible, on account of its imprecise and undefined nature, to calculate the number of files and documents liable to fall within its scope. Such an argument cannot be upheld, since the request was clear in referring to access to all preparatory documents relating to Directive 2001/18 and therefore the absence of a list of specific documents could have an impact only on the time-limits for reply – an issue which was resolved by the fair solution – but not on the scope of the request for access.

90      Third, it must in any event be noted that the Commission itself states in its written pleadings that, even though the applicant’s request amounted to an exceptional situation, as in the case of the request underlying the judgment in VKI, cited in paragraph 44 above, the Commission does not intend to rely on such a situation, as is confirmed by the fact that it conducted a concrete, individual examination of all documents considered to be relevant. On that point, however, the Commission’s position appears to be contradictory. On the one hand, the Commission states that it does not intend to rely on the burden of work caused by the applicant’s request for access, whereas, on the other, it claims that, since the request for access was wide-ranging and imprecise, it sought to find a fair balance between that request and its capacity to respond to it within the limits of the principle of good administration. Furthermore, the Commission pointed out several times in its written pleadings that it examined a large number of documents from which it selected the 48 documents appearing, in its view, to satisfy the request.

91      It must therefore be concluded that, while not invoking the burden of work exception which stems from the judgment in VKI, cited in paragraph 44 above, the Commission justifies the fact that it did not consider the disclosure of all the documents which were capable of falling within the scope of the request for access, and which were not identified in that request, by relying on the observance of the principle of good administration, as a result of which it sought a fair balance between the request for access at issue and its capacity to respond to it. As the Commission confirmed in response to a written question of the Court, the Commission takes the view that it has a certain discretion if the applicant for access does not specify the particular documents he wishes to obtain.

92      In view of all of the foregoing, in particular the fact that the Court has held the possibility of refusing access on the basis of the amount of work for the institution concerned to be exceptional, and, moreover, the fact that the Commission is not formally relying on such an exception in the present case and there is nothing in the contested decision that refers to the allegedly unreasonable nature of the first request or to any possible problems arising from its allegedly wide-ranging and imprecise nature, it must be held that the Commission has failed to justify its implied refusal – established in paragraph 83 above – to grant access to certain documents relating to the background to the adoption of Directive 2001/18.

93      The implied refusal thus established implies also, by definition, an infringement of the obligation to state reasons.

94      In that regard, it is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the Community judicature to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (Case C367/95 P Commission v Sytraval and Brink’s France [1998] ECR I1719, paragraph 63; Case C266/05 P Sison v Council [2007] ECR I1233, paragraph 80; Case T188/98 Kuijer v Council [2000] ECR II1959, paragraph 36; JT’s Corporation v Commission, cited in paragraph 67 above, at paragraph 63; and Case T187/03 Scippacercola v Commission [2005] ECR II1029, paragraph 66).

95      In the case of a request for access to documents, where the institution in question refuses such access, it must demonstrate in each individual case, on the basis of the information at its disposal, that the documents to which access is sought do indeed fall within the exceptions listed in Regulation No 1049/2001 (Joined Cases T110/03, T150/03 and T405/03 Sison v Council [2005] ECR II1429, paragraph 60, and Case T93/04 Kallianos v Commission [2006] ECR II0000, paragraph 90; see, as regards the 1993 code of conduct, Joined Cases C174/98 P and C189/98 P Netherlands and van der Wal v Commission [2000] ECR I1, paragraph 24, and Case C41/00 P Interporc v Commission [2003] ECR I2125, paragraph 56). Under that case-law, it is therefore for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the document requested does in fact fall within the scope of the exception relied on and, second, whether the need for protection relating to that exception is genuine (Sison v Council, paragraph 61).

96      In the present case, the implied refusal of access established in paragraph 83 above implies, by definition, an absolute failure to state reasons. It follows that, even if the Commission’s considerations and assertions on this point before the Community judicature are assumed to be correct, they cannot remedy that failure to state reasons (see, to that effect, Joined Cases C329/93, C62/95 and C63/95 Germany and Others v Commission [1996] ECR I5151, paragraph 48, and Case T318/00 Freistaat Thüringen v Commission [2005] ECR II4179, paragraph 127).

97      It follows from the whole of the foregoing that the contested decision includes an implied refusal of access to certain documents requested by the applicant, and that this refusal does not satisfy the obligation to state reasons which Article 253 EC imposes on the Community institutions.

98      Accordingly, the application for annulment of the contested decision must be allowed as regards that implied refusal of access.

 Second plea in law, alleging that, in refusing access to documents Nos 6, 9, 16, 17, 29 and 46, the Commission infringed the third indent of Article 4(1)(a) and the second subparagraph of Article 4(3) of Regulation No 1049/2001, committed a manifest error of assessment in considering that there was no overriding public interest to justify disclosure of those documents, and infringed Article 253 EC by failing to state its reasons

99      By her second plea in law, the applicant submits that the contested decision is unlawful in so far as the Commission is refusing her access to documents Nos 6, 9, 16, 17, 29 and 46.

100    The plea is expressed, in essence, in five parts. In the first part, the applicant pleads the contradictory nature of the Commission’s conclusion that one or more exceptions apply to the documents which were not disclosed. In the second part, the applicant submits that the Commission erred in law in relying on the exception relating to the decision-making process that is provided for under the second subparagraph of Article 4(3) of Regulation No 1049/2001 with regard to documents drawn up after the adoption of Directive 2001/18. In the third part, the applicant submits that the Commission committed a manifest error of assessment and erred in law in finding that the disclosure of the documents in question would seriously undermine the decision-making process. In the fourth part, the applicant submits that the Commission committed a manifest error of assessment in considering that there was no overriding public interest to justify disclosure of the documents in question and was in breach of its obligation to state reasons. In the fifth part, the applicant submits that, in applying the exception relating to the protection of international relations provided for under the third indent of Article 4(1)(a) of Regulation No 1049/2001, the Commission erred in law and committed a manifest error of assessment when it found that the disclosure of the documents in question would weaken its position as regards the issues pending before the special panel established under the auspices of the WTO.

101    The second part of that plea in law should be examined first.

 Arguments of the parties

102    The applicant explains, first of all, that this head of claim does not apply to documents Nos 17 and 29, since she presumes that they relate to the passage of Regulation (EC) No 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labelling of GMOs and the traceability of food and feed products produced from GMOs and amending Directive 2001/18 (OJ 2003 L 268, p. 24), rather than to that of Directive 2001/18. Document No 17 is described as a briefing note on traceability and labelling dated 24 April 2001, which suggests that it relates to the proposal for a regulation concerning the traceability and labelling of GMOs (OJ 2001 C 304 E, p. 327), which was adopted on 25 July 2001 and which became Regulation No 1830/2003. Similarly, as regards document No 29, which is described in the contested decision as a background note for the European Parliament Environment committee meeting of 11 September 2001 concerning the labelling and traceability of GMOs, the applicant infers from the content of documents Nos 26 and 28, to which she had access and which were drawn up for that same meeting, that it also concerns the background to the adoption of Regulation No 1830/2003. The applicant states that if, however, documents Nos 17 and 29 relate to Directive 2001/18, this head of claim applies equally to them.

103    As far as documents Nos 6, 9 and 16 are concerned, the applicant points out that they are dated 26 January, 1 February and 20 April 2001 respectively, and that they are all described by the Commission as briefing notes for staff meeting on the revision of Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of GMOs (OJ 1990 L 117, p. 15), which was repealed and replaced by Directive 2001/18. Document No 46 dated 7 December 2001 is described as containing ‘[d]efensive points’ for a meeting between Commissioner Ms Margot Wallström and the Socialist Group of the European Parliament. The applicant assumes, therefore, that document No 46 contains a list of points for Ms Wallström to use to defend the Commission’s position in response to the concerns or criticisms of the political group in question in respect of certain aspects of Directive 2001/18.

104    Next, the applicant states that, at the date when documents Nos 16 and 46 were produced, Directive 2001/18 had already been formally adopted and published in the Official Journal, and had already entered into force. It follows that the decision-making process to which those documents related was complete, and therefore they could not have contained ‘opinions for internal use as part of deliberations and preliminary consultations’. Similarly, as regards documents Nos 6 and 9, the applicant observes that, at the date when they were produced, the Conciliation Committee, formed in accordance with Article 251(4) EC, had already adopted a joint text on 14 December 2000. According to the applicant, it follows from this that the Commission misapplied the exception in the second subparagraph of Article 4(3) of Regulation No 1049/2001 in considering that that exception applied to documents Nos 16 and 46, in relation to which the decision-making process was effectively complete, and to documents Nos 6 and 9, in relation to which in any event the Commission’s internal decision-making process was complete.

105    In response to the Commission’s argument that the documents in question did not relate to Directive 2001/18 but to the adoption of a package of measures intended to complement that directive, and that they contained internal opinions in relation to decisions to be taken under the comitology procedure (Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission; OJ 1999 L 184, p. 23), the applicant submits that the Commission’s description of those documents in its written pleadings differs from that given in the contested decision. If the correct description was that contained in the defence, it would follow from this that documents Nos 6, 9, 16 and 46 would clearly not be covered by her first request. However, since the Commission identified those documents as being relevant, the applicant takes the view that she must be able to challenge the refusal to grant her access to them, not least because, as she pointed out at the hearing, they could be covered by one of the other five requests.

106    The Commission maintains that it correctly applied the exception provided for under the second subparagraph of Article 4(3) of Regulation No 1049/2001 to documents Nos 6, 9, 16 and 46, which, together with documents Nos 17 and 29, contained internal opinions concerning the adoption of a package of measures intended to complement Directive 2001/18. Those measures, unlike Directive 2001/18, had not yet been adopted when the documents in question were produced, but had already been adopted by the time that access to those documents was refused. The documents at issue are therefore documents which, having all been produced after the adoption of Directive 2001/18, were drawn up before the adoption of the comitology decisions to which they relate.

 Findings of the Court

107    First, it must be borne in mind that, by this head of claim, the applicant is alleging that the Commission erred in law in relying on the exception concerning the protection of the decision-making procedure in respect of documents that were drawn up after the date on which the process of adoption of Directive 2001/18 was already complete.

108    Second, as the applicant explained in response to a written question of the Court, and contrary to what may be suggested by the application, this head of claim is not limited to documents Nos 6, 9, 16 and 46 but relates equally to documents Nos 17 and 29, since the Commission maintained in its defence that those two documents did not fall within the scope of one of the other requests for access but, in common with the other documents referred to above, concerned a package of measures intended to complement Directive 2001/18.

109    Nevertheless, it must be noted that the Commission recognised at the hearing, following a question put by the Court, that document No 29, to which access was refused, and document No 26, to which the applicant had full access, were in effect the same document, and formal notice of this was taken in the minute of the hearing. It follows that the head of claim in question must be considered to be devoid of purpose as regards the refusal of access to document No 29.

110    Third, it must be borne in mind that, by order of 13 July 2007, the Court ordered the Commission, pursuant to Article 65(b), Article 66(1) and the third subparagraph of Article 67(3) of the Rules of Procedure, to produce the documents covered by the present plea, and that the Commission complied with that order.

111    The production of documents Nos 6, 9, 16, 17 and 46 allowed the Court to verify that these were not preparatory documents relating to the adoption of Directive 2001/18, as might have been inferred from the titles which the Commission set out in the list annexed to the contested decision, but documents some of which postdated the adoption of Directive 2001/18 and which had been drawn up by the Commission, as it submitted in its written pleadings and at the hearing, with a view to the adoption of other measures, in particular, decisions taken under the comitology procedure.

112    It follows that documents Nos 6, 9, 16, 17 and 46 are not within the scope of the applicant’s first request, which was limited to internal documents concerning the background to the adoption of Directive 2001/18.

113    In those circumstances, it is necessary to ascertain whether the applicant has a legal interest in bringing proceedings, that is whether she has an interest in having the contested decision annulled as regards the refusal of access to documents which are outside the scope of her request. In that regard, the applicant submits that, since the Commission identified documents Nos 6, 9, 16, 17 and 46 as being relevant in the contested decision, she must be able to challenge the Commission’s refusal to disclose them, and that it is not necessary to establish whether they are included in her request. That conclusion, as she stated at the hearing, is dictated also on grounds of procedural economy, since the documents in question could be relevant to one of the other requests.

114    In that regard, it must be borne in mind that an action for annulment brought by a natural or legal person is not admissible unless the applicant has an interest in seeing the contested measure annulled (Case T136/05 Salvat père & fils and Others v Commission [2007] ECR II0000, paragraph 34). Such an interest presupposes that the annulment of the measure must of itself be capable of having legal consequences (see Joined Cases T480/93 and T483/93 Antillean Rice Mills and Others v Commission [1995] ECR II2305, paragraph 59, and the case-law cited therein; Case T310/00 MCI v Commission [2004] ECR II3253, paragraph 44; and order of 12 January 2007 in Case T104/06 SPM v Commission, not published in the ECR, paragraph 53) and that the action must be likely, if successful, to procure an advantage for the party who brought it (see, to that effect, Case C50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I6677, paragraph 21, and order in Case T387/04 EnBW Energie Baden-Württemberg v Commission [2007] ECR II0000, paragraph 96).

115    In the present case, since the contested decision concerns the first request for access (see paragraph 56 above) and, moreover, documents Nos 6, 9, 16, 17 and 46, to which the present plea relates, are outside the scope of that first request, any annulment of the contested decision, in so far as it refuses access to those documents, is not liable to procure an advantage for the applicant. In view of the scope of the first request for access, annulment of the contested decision would not give rise to the enforcement measures referred to in Article 233 EC in relation to documents falling outside the scope of that request (see, to that effect, orders in Case T13/96 TEAM and Kolprojekt v Commission [1997] ECR II983, paragraphs 27 and 28, and in Case T28/02 First Data and Others v Commission [2005] ECR II4119, paragraph 40).

116    It follows from all the foregoing that the second plea in law is devoid of purpose in so far as it relates to the refusal of access to document No 29, and that it is inadmissible, due to the lack of a legal interest in bringing proceedings, in so far as it relates to the refusal of access to documents Nos 6, 9, 16, 17 and 46, and there is no need in the present case to consider whether the latter documents fall within the scope of any of the applicant’s other requests.

 Third plea in law, alleging that, in refusing access to documents Nos 27, 32, 33 and 34, the Commission infringed the general principle of proportionality by failing to consider granting partial access to those documents in accordance with Article 4(6) of Regulation No 1049/2001, and infringed Article 253 EC by failing to state its reasons

 Arguments of the parties

117    The applicant observes that, as is apparent from point 3.3 of the contested decision, the Commission justified the refusal of access to documents Nos 27 and 32 to 34 by claiming that these were briefing notes in preparation for meetings with manufacturers of biotechnology products, and that they contained information the disclosure of which would affect the commercial interests of the companies concerned. In addition, at point 3.4 of the contested decision, the Commission stated that partial access could not be granted to any of those documents, since their entire content fell under one or more of the exceptions to the right of access. According to the applicant, that conclusion cannot be accepted, given that the Commission itself admits at point 3.3 of the contested decision that the exception relating to commercial interests applies only to parts of those documents. Access ought therefore to have been given to those parts of the documents that were not covered by that exception, in accordance with Article 4(6) of Regulation No 1049/2001.

118    With regard to point 3.4 of the contested decision, the applicant states that the documents to which the phrase ‘any of these documents’ relates cannot be clearly identified. It could relate to the four documents referred to at point 3.3 of the decision or to all of the 23 documents to which access was denied altogether, given that the phrase appears at the very end of point 3, which is entitled ‘Documents to which access is being denied’.

119    The applicant further submits that one of the purposes of the obligation to give reasons for individual decisions under Article 253 EC is to permit interested parties to know the justification for the measure so as to enable them to protect their rights (Case T83/96 van der Wal v Commission [1998] ECR II545). In the present case, the applicant was not in a position to protect her rights, which forced her to act without knowing the real reason for the refusal of access. The contested decision is, moreover, inherently contradictory inasmuch as the Commission states in the third paragraph of point 3.1 that the exception relating to the protection of the decision-making process applies to all the documents to which access is being denied, whereas at point 3.4 of the same decision, it maintains that their entire content falls under one or more of the abovementioned exceptions to the right of access. That suggests that the entire content of each document could fall under the third indent of Article 4(l)(a), the first indent of Article 4(2) or the second subparagraph of Article 4(3) of Regulation No 1049/2001. The applicant infers from this that the third paragraph of point 3.1 of the contested decision and point 3.4 are mutually exclusive, in that one of them must be wrong.

120    The Commission challenges the applicant’s arguments and takes the view that it neither infringed Article 4(6) of Regulation No 1049/2001 nor failed in its obligation to give reasons for the contested decision.

 Findings of the Court

121    It is very clear from the contested decision that point 3 relates to all ‘[d]ocuments to which access is being denied’. All those documents, as the Commission states at point 3.1 of that decision, are covered by the exception relating to the protection of the decision-making process provided for under the second subparagraph of Article 4(3) of Regulation No 1049/2001, and indirectly by that relating to the protection of international relations provided for under the third indent of Article 4(1)(a) of Regulation No 1049/2001. At the end of that same point 3.1, the Commission states that ‘the harm caused to the decision-making process would also weaken [its] position as regards the issues pending before the WTO panel, thus putting at risk its relations with its trading partners’, and that ‘[t]herefore, disclosure of these documents would indirectly affect the Commission’s international relations, which are protected under Article 4(1)(a), third indent of Regulation No 1049/2001’.

122    By the statements it makes at point 3.1 of the contested decision, the Commission is therefore stating clearly that the exception on which the refusal of access is based is that relating to the protection of the decision-making process. The harm caused to international relations is only an indirect corollary of the harm to the decision-making process, which means that that exception, as referred to at the end of point 3.1 of the contested decision with regard to the 23 documents to which access was denied, does not amount to an autonomous justification for the denial of access. In fact, the justification is purely secondary, as is equally apparent from the fact that the Commission itself attaches no legal consequence to it, since it does not refer to it in maintaining that there is no overriding public interest to justify disclosure of the documents in question.

123    Where it also justified its refusal on the basis of other exceptions, the Commission took care to identify the documents concerned. Some of the documents referred to at point 3.1 are identified at point 3.2 of the contested decision, namely documents Nos 36, 41, 45 and 47, which were produced specifically to prepare for meetings of the Commissioner with trading partners of the European Union, and which, for the reasons explained, are also covered – according to the Commission – by the exception relating to the protection of international relations provided for under the third indent of Article 4(1)(a) of Regulation No 1049/2001. Similarly, documents Nos 27, 32, 33 and 34 are specifically identified at point 3.3 of the contested decision, and the Commission claims that those documents contain information the disclosure of which would affect the commercial interests of the companies concerned, and that the parts of those documents which contain that information therefore fall under the exception relating to the protection of commercial interests provided for under the first indent of Article 4(2) of Regulation No 1049/2001.

124    It follows from the foregoing that, with regard to the 23 documents to which access was denied, the Commission took the view that they were all covered by the exception relating to the protection of the decision-making process, and that some of them – those identified at points 3.2 and 3.3 of the contested decision – also fell within the scope of the exceptions relating to the protection of international relations or of commercial interests. The assertion at point 3.4 of the contested decision that no partial access could be granted to any of these documents, since their full content fell under one or more of the exceptions to the right of access, can therefore only be understood as meaning that, in addition to the exception relating to the protection of the decision-making process, some of the documents referred to at point 3.1 of the contested decision – namely those identified at points 3.2 and 3.3 of the decision – are wholly or partly covered additionally by the exceptions relating to the protection of international relations and commercial interests respectively.

125    As regards documents Nos 27, 32, 33 and 34, while it is true therefore, as the applicant claims, that the exception relating to the protection of commercial interests covers only parts of those documents – those parts concerning information the disclosure of which would affect the commercial interests of the companies concerned – the fact remains that these are documents which, according to the Commission, are covered by the exception relating to the protection of the decision-making process. It follows that the allegation of an infringement of the principle of proportionality is unfounded, given that the parts of those documents which are not covered by the exception relating to the protection of commercial interests are covered – as attested by point 3.1 of the contested decision – by the exception relating to the protection of the decision-making process.

126    Finally, it is not possible to identify any contradiction between point 3.1 and point 3.4, since a single document may fall within the scope of one or more exceptions. The Court held in relation to the 1993 code of conduct that the Commission was entitled to invoke jointly more than one exception in order to refuse access to documents which it holds, since there is no provision of that code that precludes it from doing so (Case T105/95 WWF UK v Commission [1997] ECR II313, paragraph 61). That conclusion applies equally to Regulation No 1049/2001, since it does not prohibit the application of several exceptions either. Furthermore, the Court has already implicitly confirmed in a judgment relating to that regulation that the institution concerned may base the denial of access on more than one exception (Joined Cases T391/03 and T70/04 Franchet and Byk v Commission [2006] ECR II2023, paragraphs 102 and 103).

127    It follows from all the foregoing that the application for annulment of the contested decision must be dismissed in so far as it concerns the total refusal of access to documents Nos 27, 32, 33 and 34.

 The request for production of documents

 Arguments of the parties

128    The applicant requests the Court to order the Commission, by way of measures of inquiry pursuant to Article 65(b) and Article 66(1) of the Rules of Procedure, to produce the documents in question so that the Court can examine their content and thus determine whether, and to what extent, they are covered by the exceptions relied on by the Commission.

129    The Commission has not commented on the applicant’s request.

 Findings of the Court

130    As is clear from all of the foregoing considerations, the Court has been able to rule on the application on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings and in the light of the documents produced by the Commission following the order of the Court of 13 July 2007.

131    The applicant’s request that the Commission should be ordered to provide documents other than those already produced at the Court’s request must therefore be rejected (see, to that effect, Case T152/00 E v Commission [2001] ECRSC IA179 and II813, paragraphs 86 and 87, and Case T281/01 Huygens v Commission [2004] ECRSC IA203 and II903, paragraphs 145 and 146).

 Costs

132    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 87(3), the Court may order costs to be shared or may decide that each party is to bear its own costs where each party succeeds on some and fails on other heads or where the circumstances are exceptional. Furthermore, Article 87(6) of the Rules of Procedure provides that, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

133    As has been established in paragraph 63 above, the action has become devoid of purpose with respect to the application for annulment of the contested decision in so far as it included an implied refusal of access to the preparatory documents relating to Directive 2001/18 produced by the Trade DG. However, the partial elimination of the subject-matter of the action resulted from the adoption on 6 June 2005 of the second confirmatory decision, as the Commission failed to indicate in the contested decision that the latter did not cover preparatory documents relating to Directive 2001/18 produced by the Trade DG. Moreover, the inadmissibility of the action so far as concerns the application for annulment of the refusal of access to documents produced after the adoption of Directive 2001/18 is due to an error on the part of the Commission, which included in the scope of the request documents that were not preparatory documents relating to the adoption of that directive.

134    The Commission’s conduct therefore caused the applicant to incur unnecessary costs.

135    In those circumstances, in view of the fact that each of the parties has been partly successful, the Commission must be ordered to bear its own costs and to pay one half of those incurred by the applicant.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby:

1.      Declares that there is no further need to rule on the lawfulness of the Commission’s decision of 19 November 2004 partially refusing Ms Rhiannon Williams access to certain preparatory documents in respect of the legislation on genetically-modified organisms in so far as it may include an implied refusal of access to preparatory documents from the Commission’s Directorate-General (DG) for Trade relating to the adoption of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC;

2.      Annuls the Commission’s decision of 19 November 2004 in so far as it impliedly refused access to preparatory documents relating to the adoption of Directive 2001/18 other than those produced by the Trade DG;

3.      Dismisses the action as to the remainder;

4.      Orders the Commission to bear its own costs and to pay one half of those incurred by Ms Williams

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