Case C‑761/18 P

Päivi Leino-Sandberg

v

European Parliament

 Judgment of the Court (Fifth Chamber), 21 January 2021

(Appeal – Access to documents of the EU institutions – Regulation (EC) No 1049/2001 – Article 10 – Refusal to grant access – Action before the General Court of the European Union against a decision by the European Parliament refusing to grant access to a document – Disclosure of the annotated document by a third party after the action was lodged – Order that there was no need to adjudicate pronounced by the General Court on the ground that was no longer any interest in bringing proceedings – Error of law)

Action for annulment – Natural or legal persons – Interest in bringing proceedings – Action against a decision by an institution refusing access to documents – Disclosure of the annotated document by a third party after the action was lodged – Whether there is an interest in bringing proceedings – Assessment having regard to the substantive law applicable in the main proceedings – Regulation No 1049/2001 – Treating the disclosure of a document by a third party as being the same as disclosure by the institution concerned – Not permissible – Interest in bringing proceedings retained

(Art. 263, fourth para., TFEU; European Parliament and Council Regulation No 1049/2001, Art 10(1) and (2))

(see paragraphs 32-35, 40, 45-49)

Résumé

The appellant, a University Professor, submitted to the European Parliament, in the context of two research projects relating to transparency in trilogues, a request for access to documents of that institution refusing to grant to a person access to certain documents containing information obtained in the context of trilogues. (1) By its decision of 3 April 2017, (2) the Parliament refused to grant the appellant access to the requested document.

The General Court held (3) that there was no longer any need to adjudicate on the appellant’s action lodged against the latter decision, since, following the disclosure by its addressee, on the internet, of the document access to which the appellant had requested, those proceedings had become devoid of purpose.

Hearing an appeal brought by the appellant, the Court set aside the order of the General Court and referred the case back to that court.

Findings of the Court of Justice

Relying on its case-law, (4) the Court of Justice held that, even if the document at issue has been disclosed by a third party, the decision at issue has not been formally withdrawn by the Parliament, and therefore the action retained its purpose.

In order to ascertain whether the General Court should have ruled on the substance of the action, the Court examines whether the appellant, notwithstanding the disclosure of the document at issue by a third party, retained her interest in bringing proceedings. As a preliminary observation, the Court notes that, while it is true that an interest in bringing proceedings, which must continue until the final decision is delivered failing which there will be no need to adjudicate, constitutes a procedural condition independent of the substantive law applicable to the substance of the case, it cannot however be detached from that law. Thus, taking into account the fact that the request for access made by the appellant was based on Regulation No 1049/2001, (5) the Court recalls that that regulation, which is based on the principle of openness, seeks to confer on the public as wide a right of access as possible to documents of the institutions. The Court states that the regulation establishes, first, the right, in principle, for any person to access documents of an institution and, second, the obligation, in principle, of an institution to grant access to its documents. The exceptions to the right of access to documents of the institutions are listed exhaustively therein.

Next, the Court of Justice noted that, even though, according to the provisions of Regulation No 1049/2001, (6) the institution concerned may fulfil its obligation of granting access to documents by informing the applicant how to obtain the requested document if the document has already been released by the institution concerned and is easily accessible, that is not the case if the document of an institution has been disclosed by a third party. In that regard, the Court stresses that a document disclosed by a third party cannot be regarded as constituting an official document, or as expressing the official position of the institution in the absence of an unequivocal endorsement by that institution according to which the document obtained emanates from it and expresses its official position.

The Court holds that, in a situation where the appellant has only obtained access to the document at issue disclosed by a third party and where the Parliament continues to refuse to grant her access to the requested document, it cannot be considered that the appellant has obtained access to that document, within the meaning of Regulation No 1049/2001, nor that, therefore, she no longer has any interest in seeking the annulment of the decision at issue solely as a result of that disclosure. On the contrary, in such circumstances, the appellant retains a genuine interest in obtaining access to an authenticated version of the requested document, within the meaning of Article 10(1) and (2) of the regulation, guaranteeing that that institution is the author and that the document expresses its official position.

Consequently, the Court of Justice finds that the General Court erred in law in treating the disclosure of a document by a third party as being the same as disclosure by the institution concerned of the requested document and in having concluded that there was no longer any need to adjudicate on the appellant’s action on the ground that, since the document had been disclosed by a third party, the appellant could access it and use it in a way which is as lawful as if she had obtained it as a result of her application under the regulation.

1      European Parliament Decision of 8 July 2015, A(2015) 4931.

2      European Parliament Decision A(2016) 15112.

3      Order of 20 September 2018, Leino-Sandberg v Parliament (T‑421/17, not published, EU:T:2018:628).

4      Judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660).

5      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).

6      Article 10(1) and (2) of Regulation No 1049/2001.