Case T-187/03

Isabella Scippacercola

v

Commission of the European Communities

(Access to documents of the institutions – Article 4(5) of Regulation (EC) No 1049/2001)

Judgment of the Court of First Instance (Third Chamber), 17 March 2005 ?II – 0000

Summary of the Judgment

1. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 – Limitations to the right of access to documents – No disclosure of a document originating from a Member State without the prior agreement of that State – Concept of a document originating from a Member State – Report created by a third party on behalf of a Member State – Inclusion

(European Parliament and Council Regulation No 1049/2001, Art. 4(5))

2. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from third parties and documents originating from a Member State – Differential treatment of requests for access – Power of a Member State to request an institution not to disclose documents – Obligation on the institution not to disclose them without prior agreement

(European Parliament and Council Regulation No 1049/2001, Art. 4(4) and (5))

1. It follows from Article 4(5) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents that, among third parties, the Member States are subject to special treatment. That provision confers on a Member State the power to request an institution not to disclose documents originating from that State without its prior agreement. That power conferred on Member States by Article 4(5) is explained by the fact that it is neither the object nor the effect of that regulation to amend national legislation on access to documents.

A cost‑benefit analysis report received by the Commission in connection with an application for financing from the Cohesion Fund submitted by the only beneficiary Member State, which necessarily forms part of the information such an application must contain, must be regarded as a document originating from that State, regardless of the fact that it was created by a third party on behalf of that State.

(see paras 34, 36-39)

2. Article 4(4) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents requires the institutions to consult the third party author of the document to which access has been requested with a view to assessing whether an exception in Article 4(1) or (2) is applicable, unless it is clear that the document must or must not be disclosed. Consequently, consultation of the third party concerned constitutes, as a general rule, a prerequisite for determining whether the exceptions to access provided for in Article 4(1) and (2) of that regulation are applicable in the case of third party documents.

On the other hand, according to Article 4(5) of that regulation, Member States are the subject of special treatment. With regard to documents originating from a Member State which are in the possession of an institution, the Member State has the right to request that institution not to disclose them. That Member State is not obliged to state reasons for its request under Article 4(5) and it is not for the institution to examine whether non-disclosure of the document in question is justified, inter alia, in the public interest. Consequently, where a Member State requests an institution not to disclose a document originating from that Member State without its prior agreement, the institution is bound by that request.

(see paras 54, 56, 58, 62)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber) 17 March 2005 (1)

(Access to documents of the institutions – Article 4(5) of Regulation (EC) No 1049/2001)

In Case T-187/03,

applicant,

v

defendant,

APPLICATION for annulment of the Commission's decision of 19 March 2003 rejecting the application made by the applicant for access to a document relating to the project for the new Athens International Airport at Spata (Greece),

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

composed of J. Azizi, President, M. Jaeger and O. Czúcz, Judges,

Registrar: I. Natsinas, Administrator,

gives the following

‘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.

...’.

‘The Conference agrees that the principles and conditions referred to in Article [255](1) of the Treaty establishing the European Community will allow a Member State to request the Commission or the Council not to communicate to third parties a document originating from that State without its prior agreement.’

‘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.

…’.

‘For the purpose of this Regulation:

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

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

unless there is an overriding public interest in disclosure.

…

5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.

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

…’.

‘Where a Member State receives a request for a document in its possession, originating from an institution, unless it is clear that the document shall or shall not be disclosed, the Member State shall consult with the institution concerned in order to take a decision that does not jeopardise the attainment of the objectives of this Regulation.

The Member State may instead refer the request to the institution.’

‘1. Sensitive documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as “TRÈS SECRET/TOP SECRET”, “SECRET” or “CONFIDENTIEL” in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters.

2. Applications for access to sensitive documents under the procedures laid down in Articles 7 and 8 shall be handled only by those persons who have a right to acquaint themselves with those documents. These persons shall also, without prejudice to Article 11(2), assess which references to sensitive documents could be made in the public register.

3. Sensitive documents shall be recorded in the register or released only with the consent of the originator.

…’.

‘1. Where the Commission receives an application for access to a document which it holds but which originates from a third party, the Directorate-General or department holding the document shall check whether one of the exceptions provided for by Article 4 of Regulation (EC) No 1049/2001 applies. If the document requested is classified under the Commission’s security rules, Article 6 of these Rules shall apply.

2. If, after that examination, the Directorate-General or department holding the document considers that access to it must be refused under one of the exceptions provided for by Article 4 of Regulation … No 1049/2001, the negative answer shall be sent to the applicant without consultation of the third-party author.

3. The Directorate-General or department holding the document shall grant the application without consulting the third-party author where:

4. In all the other cases, the third-party author shall be consulted. In particular, if the application for access concerns a document originating from a Member State, the Directorate-General or department holding the document shall consult the originating authority where:

5. The third-party author consulted shall have a deadline for reply which shall be no shorter than five working days but must enable the Commission to abide by its own deadlines for reply. In the absence of an answer within the prescribed period, or if the third party is untraceable or not identifiable, the Commission shall decide in accordance with the rules on exceptions in Article 4 of Regulation … No 1049/2001, taking into account the legitimate interests of the third party on the basis of the information at its disposal.

6. If the Commission intends to give access to a document against the explicit opinion of the author, it shall inform the author of its intention to disclose the document after a ten-working day period and shall draw his attention to the remedies available to him to oppose disclosure.

…’.

‘… With reference to your request for a copy of the cost-benefit analysis, since this is a document which predates the entry into force of Regulation … No 1049/2001, the national authorities have been consulted in accordance with the provisions of Article 5 of … Decision 2001/937 … . By fax of 10 February 2002, the national authorities informed the DG [for Regional Policy] that access to that document should not be permitted.

The reason for the refusal relates to protection of intellectual property rights. The document is a study drafted by private consultants on behalf of a bank. The latter assisted Greece during the preparation of the project file, under a confidentiality clause.

In those circumstances, the DG [for Regional Policy] considers that, in accordance with Article 4(5) of Regulation … No 1049/2001, the analysis in question cannot be released …’.

‘Thank you for your letter of 24 February 2003, registered on 26 February, by which you request re-examination of your application for access to the complete text of the cost-benefit analysis concerning the construction of the new Athens International Airport.

That analysis was carried out by a bank on behalf of the Greek national authorities (Ministry of National Economic Affairs).

In accordance with Article 5(4)(a) of the detailed rules for the application of Regulation No 1049/2001, adopted by … Decision 2001/937, the Commission’s services have consulted the Greek authorities regarding access to that document which was sent to the Commission before the entry into force of the regulation (3 December 2001). In response, the Greek authorities indicated that they did not agree to the release of that document by the Commission.

On the basis of Article 4(5) of Regulation No 1049/2001, I am therefore unable to give you access to that document and must consequently confirm the refusal of the Regional Policy [DG] to your request.

…’.

Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby:

Azizi

Jaeger

Czúcz

Delivered in open court in Luxembourg on 17 March 2005.

H. Hung

M. Jaeger

Registrar

President