Judgment of the General Court (Seventh Chamber) of 21 October 2010 – Agapiou Joséphidès v Commission and EACEA

(Case T-439/08)

Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the award of a Jean Monnet Centre of Excellence to the University of Cyprus – Documents emanating from a third party – Partial refusal of access – Action for annulment – Time-limit for action – Inadmissibility – Objection of illegality – Exception relating to the protection of the privacy and integrity of the individual – Exception relating to the protection of commercial interests – Duty to give reasons

1.                     Actions for annulment – Conditions for admissibility – Action brought against the author of the contested measure – Exceptions – Measures adopted under delegated powers imputable to the delegating institution – Conditions (Art. 230 EC) (see paras 34-38)

2.                     Actions for annulment – Actionable measures – Concept – Decision of the Education, Audiovisual and Culture Executive Agency (EACEA) partially rejecting an application for access to documents under Regulation No 1049/2001 – Decision-making competence of EACEA distinct from that of the Commission – Inclusion in the concept (Art. 230 EC) (see paras 42-45)

3.                     Plea of illegality – Scope – Measures the illegality of which may be pleaded – General measure providing the basis of the contested decision – Need for a legal connection between the contested measure and the contested general measure (Arts 230 EC and 241 EC) (see paras 49-51, 53-54)

4.                     European Communities – Community institutions and bodies – Right of public access to documents –Article 255 EC and Article 1, second indent, EU – Direct effect – None – Effect (Art. 255 EC; Art. 1, second para., EU) (see paras 62-63)

5.                     Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects – Decision of the Education, Audiovisual and Culture Executive Agency (EACEA) partially to refuse access to Commission documents following a fresh application – Assessment as to whether that decision definitive or otherwise – Obligation to bring a fresh confirmatory application for access – None (European Parliament and Council Regulation No 1049/2001, Arts 4(1), (3) and (7), 6(1), 7 and 8(1)) (see paras 73-75, 78)

6.                     European Communities – Community institutions and bodies – Right of public access to documents – Obligation of institutions or bodies to develop sound administrative practices (European Parliament and Council Regulation No 1049/2001, Art. 15(1)) (see paras 88-90)

7.                     European Communities – Community institutions and bodies – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from third parties – Prior consultation of third parties concerned – Scope – Mandatory nature – None – Discretion of the institutions (European Parliament and Council Regulation No 1049/2001, Art. 4(4)) (see para. 95)

8.                     European Communities – Community institutions and bodies – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Conditions – Restrictive interpretation – Principle of proportionality – Obligation on the institution or body to make a concrete and individual examination of documents – Possibility of granting partial access to documents (European Parliament and Council Regulation No 1049/2001, Arts 4(2), (3) and (6)) (see paras 105-108)

9.                     European Communities – Community institutions and bodies – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of privacy and the integrity of the individual – Obligation on the institution or body to make a concrete and individual examination of documents – Scope – Possibility of granting partial access to documents (European Parliament and Council Regulation No 1049/2001, Arts 4(1)(b) and (6)) (see paras 111-112, 114-120)

10.                     European Communities – Community institutions and bodies – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the commercial interests of a legal person – Obligation on the institution or body to make a concrete and individual examination of documents – Possibility of granting partial access to documents (European Parliament and Council Regulation No 1049/2001, Art. 4(2), first indent) (see paras 125-127, 129)

11.                     European Communities – Community institutions and bodies – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Overriding public interest justifying the disclosure of documents – Concept – Obligation on the institution or body to balance the interests at stake (European Parliament and Council Regulation No 1049/2001, Arts 4(2) and (3)) (see paras 136-137, 139-142)

12.                     Acts of the institutions – Statement of reasons – Obligation – Scope (Art. 253 EC; European Parliament and Council Regulation No 1049/2001, Arts 4(1)(b), (2) and (3)) (see paras 146-150)

13.                     Actions for annulment – Time-limits – Point from which time starts to run – Measure not published and not notified to the applicant – Precise knowledge of the content and reasons – Duty to request the whole text of the decision within a reasonable time once its existence is known – Request formulated more than four months after existence of the contested decision became known – Unreasonable delay – Inadmissibility of the application (Art. 230, fifth para., EC) (see paras 157-161)

14.                     Procedure – Introduction of new pleas during the proceedings – Head of claim first raised at the reply stage – Inadmissibility (Rules of Procedure of the General Court, Art. 48(2)) (see paras 168-169)

Re:

ANNULMENT, firstly, of the decision of the EACEA of 1 August 2008, concerning a request for access to certain documents relating to the award of a Jean Monnet Centre of Excellence to the University of Cyprus and, secondly, of Commission Decision C(2007) 3749 of 8 August 2007 relating to an individual decision to award a subsidy within the framework of the Lifelong Learning Programme, Jean Monnet sub-programme.

Operative part

The Court:

1.

Dismisses the action;

2.

Orders Ms Kalliope Agapiou Joséphidès to pay the costs.