Case C‑213/15 P

European Commission

v

Patrick Breyer

(Appeal — Access to documents of the institutions — Article 15(3) TFEU — Regulation (EC) No 1049/2001 — Scope — Application for access to written submissions filed by the Republic of Austria in the case in which judgment was given on 29 July 2010, Commission v Austria (C‑189/09, not published, EU:C:2010:455) — Documents in the possession of the European Commission — Protection of court proceedings)

Summary — Judgment of the Court (Grand Chamber), 18 July 2017

1. EU institutions—Right of public access to documents—Regulation No 1049/2001—Scope—Determination according to the nature of the document applied for or its author—Precluded

   (European Parliament and Council Regulation No 1049/2001, Arts 2(3) and 3(a) and (b))

2. EU institutions—Right of public access to documents—Regulation No 1049/2001—Scope—Request for access to documents drawn up by a Member State and linked to court proceedings—Included

   (European Parliament and Council Regulation No 1049/2001, Arts 2(3), 3(a) and (b), and 4(2))

3. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of court proceedings—Scope—Written submissions lodged by a Member State before the EU Courts in pending cases—General presumption that the exception to the right of access applies

   (European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)

4. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Documents originating from a Member State—Power of the Member State to request the institution not to disclose documents—Scope

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

5. EU institutions—Right of public access to documents—Scope—Exclusion of documents of the Court of Justice falling within its judicial activities—No effect on the applicability of Regulation No 1049/2001 to other institutions holding written submissions lodged by the Member States in judicial proceedings before the EU Courts

   (Arts 15(1) and (3) TFEU, 258 TFEU and 298 TFEU; Charter of Fundamental Rights of the European Union, Art. 42; European Parliament and Council Regulation No 1049/2001)

6. EU institutions—Right of public access to documents—Scope—Exclusion of documents of the Court of Justice falling within its judicial activities—Applicability of Regulation No 1049/2001 to written submissions drawn up by a Member State and held by the Commission—Effectiveness of the exclusion not compromised

   (Art. 15(3), TFEU; European Parliament and Council Regulation No 1049/2001)

7. Judicial proceedings—Cases before the Court of Justice—Protection given to parties against misuse of procedural documents—Scope—Publication on the internet of written submissions exchanged in appeal proceedings—Abuse of procedure—Account to be taken when allocating costs

   (Rules of Procedure of the General Court, Art. 171(1))

1.  Article 3(b) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents expressly provides that the right of access to documents held by those institutions extends not only to documents they have themselves drawn up but also to those they have received from third parties, including the other EU institutions as well as the Member States. The scope of Regulation No 1049/2001 is thus defined by reference to the institutions listed in the regulation, not by reference to particular categories of documents or the author of the document held by one of those institutions.

   (see paras 36, 37)

2.  The fact that documents held by one of the institutions referred to in Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents were drawn up by a Member State and are linked to court proceedings cannot exclude such documents from the scope of the regulation. First, the fact that Regulation No 1049/2001 does not apply to applications for access to documents in the possession of the Court of Justice of the European Union does not mean that documents linked to that institution’s judicial activity are, as a matter of principle, outside the scope of the regulation where they are in the possession of the EU institutions listed in the regulation, such as the Commission. Secondly, the legitimate interests of the Member States regarding such documents can be protected on the basis of the exceptions laid down in Regulation No 1049/2001 to the principle of the right of access to documents.

   Similarly, while the fact that neither the Statute of the Court of Justice of the European Union nor the rules of procedure of the EU Courts provide for a right of access by third parties to written submissions filed in court proceedings must indeed be taken into account for the purpose of interpreting the exception laid down in Article 4(2) of Regulation No 1049/2001, it cannot, on the other hand, have the consequence that the regulation does not apply to applications for access to written submissions that have been drawn up by a Member State for the purpose of court proceedings before the EU Courts and are in the possession of an institution.

   (see paras 38, 39, 45)

3.  See the text of the decision.

   (see paras 41, 42)

4.  See the text of the decision.

   (see para. 43)

5.  In accordance with the fourth subparagraph of Article 15(3) TFEU, the Court of Justice of the European Union is subject to the system of access to documents of the institutions, laid down in the first subparagraph of that provision, only when exercising its administrative tasks. It follows that the conditions of access to documents held by that institution which relate to its judicial activity cannot be laid down by regulations adopted on the basis of the second subparagraph of Article 15(3) TFEU. However, the non-applicability of the system of access to documents laid down in the first subparagraph of Article 15(3) TFEU to the Court of Justice of the European Union when it exercises judicial functions does not preclude the application of that system to an institution to which the provisions of Article 15(3) TFEU and Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents are fully applicable, such as the Commission, where that institution holds documents drawn up by a Member State relating to court proceedings, such as written submissions lodged by a Member State in proceedings under Article 258 TFEU for failure to fulfil obligations.

   Following the entry into force of the Treaty of Lisbon, the introduction of Article 15 TFEU, which replaced Article 255 EC, extended the scope of the principle of transparency in EU law by now providing for a right of access to documents of the institutions, bodies, offices and agencies of the EU, including the Court of Justice of the European Union, the European Central Bank and the European Investment Bank, where they exercise administrative functions. There are no grounds for maintaining that the extension of that right to cover those administrative activities goes hand in hand with the introduction of any restriction whatsoever of the scope of Regulation No 1049/2001 with respect to documents originating from a Member State, such as those written submissions, that are held by the Commission in connection with proceedings before the Court of Justice of the European Union.

   Moreover, having regard to Articles 15(1) and 298 TFEU and the enshrining of the right of access to documents in Article 42 of the Charter of Fundamental Rights of the European Union, which lay down the objective of an open European administration, the fourth subparagraph of Article 15(3) TFEU cannot be interpreted as requiring a restrictive reading of the scope of Regulation No 1049/2001 with the consequence that documents drawn up by a Member State, such as those written submissions lodged by a Member State in proceedings under Article 258 TFEU for failure to fulfil obligations, do not fall within the scope of that regulation where they are held by the Commission.

   (see paras 48-52)

6.  The limitations of access to documents relating to court proceedings, whether provided for under Article 255 EC, which was succeeded by Article 15 TFEU, or under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, pursue the same objective, namely to ensure that the right of access to documents of the institutions is exercised without undermining the protection of court proceedings, and that protection means in particular that compliance with the principles of equality of arms and the sound administration of justice must be ensured. Since Regulation No 1049/2001 allows for the disclosure of documents connected with proceedings before the EU Courts to be refused if appropriate, and for the protection of such court proceedings to be ensured on that basis, it must be considered that the fourth subparagraph of Article 15(3) TFEU need not be interpreted as meaning that submissions drawn up by a Member State and held by the Commission must necessarily be excluded from the scope of that regulation. In so far as the protection of court proceedings is thus ensured, in accordance with the purpose of the fourth subparagraph of Article 15(3) TFEU, the effectiveness of that provision is not liable to be compromised.

   (see paras 53, 54)

7.  See the text of the decision.

   (see para. 62)