Case T‑540/15

Emilio De Capitani

v

European Parliament

(Access to documents — Regulation (EC) No 1049/2001 — Documents concerning an ongoing legislative procedure — Trilogues — Four-column tables relating to the Proposal for a Regulation of the European Parliament and of the Council on Europol and repealing Decisions 2009/371/JAI and 2005/681/JAI — Partial refusal of access — Action for annulment — Interest in bringing proceedings — Admissibility — First subparagraph of Article 4(3) of Regulation No 1049/2001 — Exception relating to the protection of the decision-making process — No general presumption that access should be refused to four-column tables drawn up for the purposes of trilogues)

Summary — Judgment of the General Court (Seventh Chamber, Extended Composition), 22 March 2018

1. Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Action against a decision of an institution granting only partial access to documents concerning an ongoing legislative procedure — The making available to the public of the relevant documents after the legislative procedure has come to an end — Interest in bringing proceedings retained — Admissibility — Conditions

   (Art. 266, first para., TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4)

2. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to state reasons — Scope

   (European Parliament and Council Regulation No 1049/2001, Recital 11 and Art. 4(3), first para.)

3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Conditions — Concrete, actual and serious detriment to that process — Possibility for the institution to base its decisions on general presumptions which apply to certain categories of document — Limits

   (European Parliament and Council Regulation No 1049/2001, Art. 4(3), first para.)

4. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Concept — Scope — Particularities of the legislative process — Principles of openness and transparency

   (Arts 15(2) TFEU and 294(1) TFEU; European Parliament and Council Regulation No 1049/2001, Recital 6 and Art. 4(3), first para.)

5. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Scope — Refusal of access based on the need to protect that process from external pressure — Burden of proof

   (European Parliament and Council Regulation No 1049/2001, Art. 4(3), first para.)

6. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Scope — Documents concerning an ongoing legislative procedure drawn up for the purposes of a trilogue — Refusal of access based on the provisional nature of information contained in those documents — Not permissible

   (European Parliament and Council Regulation No 1049/2001, Art. 4(3), first para.)

7. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Scope — Documents concerning an ongoing legislative procedure drawn up for the purposes of a trilogue — Refusal of access based on the possibility of deterioration in the sincere cooperation between institutions — Burden of proof

   (Arts 4(3), first para., TEU and 13(2) TEU; European Parliament and Council Regulation No 1049/2001, Art. 4(3), first para.)

1.  An action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure.

   In that regard, an applicant retains an interest in seeking annulment of the act of an EU institution to prevent its alleged unlawfulness recurring in the future. However, that interest in bringing proceedings can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances which have given rise to the action brought by the applicant.

   That is the case where, in respect of an action brought against a decision refusing access to documents concerning an ongoing legislative procedure, the allegation of unlawfulness is based on an interpretation of one of the exceptions provided for in Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents that the institution to which the application for access is made is very likely to rely on again at the time of a new request, particularly since part of the grounds for the refusal to grant access set out in the contested decision are universally applicable to any application for access to the work of ongoing trilogues.

   Moreover, in so far as both the initial application and confirmatory application explicitly seek for a certain number of documents to be disclosed relating to on-going legislative procedures and the institution concern has granted only partial access to those documents, the making available to the public of the documents at issue after the legislative procedure to which they relate has come to an end does not give full satisfaction to the applicant on account of the purpose of his applications, so that he retains an interest in seeking the annulment of the contested decision.

   (see paras 29, 32, 33)

2.  See the text of the decision.

   (see paras 59-62)

3.  See the text of the decision.

   (see paras 63-67)

4.  See the text of the decision.

   (see paras 77, 84)

5.  Although the risk of external pressure can constitute a legitimate ground for restricting access to documents related to the decision-making process, the reality of such external pressure must, however, be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure.

   (see para. 99)

6.  As regards an application for access to documents drawn up in the framework of ongoing trilogues in the course of an ordinary legislative procedure, the provisional nature of the text of the provisional compromise or the preliminary positions of the Presidency of Council in relation to the amendments proposed by the Parliament, since their content is liable to evolve in line with the state of progress of the trilogues, does not per se justify the application of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, since that provision does not draw a distinction according to the state of progress of the discussions. That provision envisages in general the documents relating to a question where a ‘decision has not been taken’ by the institution concerned, by contrast with the second subparagraph of Article 4(3) of that regulation, which envisages the situation where a decision has been taken by the institution concerned.

   In that regard, it is irrelevant whether the documents at issue were produced or received at an early, late or final stage of the decision-making process. In the same way, the fact of the documents having been produced or received in a formal or informal context has no effect on the interpretation of the exception laid down in the first sentence of Article 4(3) of Regulation No 1049/2001.

   Moreover, a proposal is, by its nature, intended to be discussed and is not liable to remain unchanged following such discussion. Public opinion is perfectly capable of understanding that the author of a proposal is likely to amend its content subsequently. For precisely the same reasons, an applicant for access to documents of an ongoing trilogue will be fully aware of the preliminary character of that information. Similarly, he will be perfectly able to grasp that, in line with the principle that ‘nothing is agreed until everything is agreed’, the information contained in the requested document is liable to be amended throughout the course of the trilogue discussions until an agreement on the entire text is reached.

   (see paras 100-102)

7.  See the text of the decision.

   (see paras 103, 104)